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The Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) defines disqualifying information for employment with a long term care facility/provider as “a conviction for a relevant crime or a finding of patient or resident abuse.” The legislation also identifies specific convictions and provides States with guidelines for identifying other disqualifying convictions. A “finding of patient or resident abuse” is defined as any substantiated finding by a State or Federal agency that a prospective direct patient access employee: has committed patient or resident abuse or neglect; has misappropriated patient or resident property; or committed such other types of acts as a participating State may specify for the purposes of implementing a background check program. (See Additional Resource 1 below.) In April 2012 the U.S. Equal Employment Opportunity Commission (EEOC) released updated guidance on employers’ use of arrest and conviction records in making hiring decisions. (See Additional Resource 2 below.)
If disqualifying information is found, the individual is ineligible for direct patient access employment by long term care facilities/providers, as identified in the Affordable Care Act. The Affordable Care Act also mandates that States participating in the National Background Check Program (NBCP) have independent processes by which applicants can appeal negative fitness determinations (more can be found in the Appeal Process resource document). This resource document defines convictions for relevant crimes and discusses States’ roles in employee disqualification under the NBCP.
How is “conviction for a relevant crime” defined?
What specific convictions are identified in section 1128(a) of the Social Security Act?
What convictions are States including as disqualifications?
What is required of States in regards to employee disqualification under the NBCP?
How does the typical grantee State disqualification process work?
Under section 1128 of the Social Security Act, “conviction” is defined as “a judgment of conviction, regardless of whether an appeal is pending or the conviction has been expunged, a finding of guilt by a court, a plea of guilty or nolo contendere that has been accepted by a court, and when the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.” The Affordable Care Act specifies that “relevant crimes” include the four convictions listed in section 1128(a) of the Social Security Act (listed in the section below), the State equivalents of those four crimes, and other types of offenses as the participating State specifies. The convictions identified in the Social Security Act each require mandatory exclusion from Federal health care programs, including employment by the long term care facilities and providers named in the Affordable Care Act.
The convictions listed in section 1128(a) of the Social Security Act are:
- Conviction of program-related crimes—any criminal offense related to the delivery of an item or service under Medicare or a State health care program (State health care programs include Medicaid, the Title V Federal maternal and child health block grant, Title XX Federal social services block grants, and the State Children’s Health Insurance Program);
- Conviction related to patient abuse—any criminal offense under Federal or State law relating to neglect or abuse of patients in connection with the delivery of a health care item or service;
- Felony conviction relating to health care fraud—any felony offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program operated by or financed in whole or in part by any Federal, State, or local government agency, if the offense occurred after August 11, 1996; and
- Felony conviction relating to a controlled substance—any felony offense under Federal or State law relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance, if the offense occurred after August 11, 1996.
The full list of mandatory and permissive exclusions can be found in the Federal Exclusion Statute 42 USC 1320a-7.
States vary in the convictions for specific crimes that they include as disqualifications for employment as a direct patient access employee. Specific criminal offenses are defined in State statutes/regulations that provide the legal authority for each State’s background check program. These statutes/regulations also often specify a period of time from the last conviction for each offense during which an individual is disqualified from employment in a direct patient access position. Several State statutes have long lists of disqualifying crimes and corresponding disqualification periods. For example, one State has a lifetime disqualification for all disqualifying crimes, and another State has a seven-year disqualification for all disqualifying crimes. Other States use tiered systems with lifetime exclusions for individuals convicted of the worst types of violent crimes (e.g., murder, kidnapping, rape, aggravated assault, and aggravated battery) and exclusions for shorter periods of time (such as five or 10 years) for other crimes or misdemeanors.
Under the Affordable Care Act, the NBCP requires that each State has a clear definition of disqualifying information (e.g., definition of “abuse,” definition of “neglect”) and keep the records of any proceedings that may contain disqualifying information. State agencies also must specify in their statues/regulations which crimes are considered disqualifying and for how long the individual will be disqualified from employment in a direct patient access position. Having a clear definition of what constitutes disqualifying information is important in the fitness determination and appeal processes because these two key processes in a State’s background check program rely on those definitions to make rulings.
The NBCP rules under the Affordable Care Act also specify certain sources that States must check for disqualifying information. In addition to checking their own criminal history databases and requesting an FBI fingerprint–based criminal history check, States must review the records of their State boards or agencies that contain disqualifying information, such as the records of licensing and disciplinary boards and State Medicaid Fraud Control Units. Further, States must search the abuse and neglect registries of all States in which the employee lived.
Checking records and registries is an easy way to disqualify an individual before devoting the time and resources needed to conduct a full fingerprint-based criminal background check. Record and registry checks may report disqualifying information, such as an employment termination for patient abuse in a case that was never prosecuted, that would not otherwise be identified through a criminal history review.
If the State agency identifies what it believes may be disqualifying information, first it verifies that the information is indeed disqualifying by checking the source of the information and confirming that the disqualifications meet the criteria defined by the State, which must include the requirements under section 1128(a) of the Social Security Act. The State agency then notifies the facility/provider and/or the applicant. The Affordable Care Act requires that the NBCP “be carried out under similar terms and conditions as the pilot program under section 307 of the MMA Act of 2003,” which required participating States to permit facilities/providers to terminate background checks at any point in the background check process if disqualifying information is discovered, according to the Centers for Medicare & Medicaid Services’ NBCP Third Solicitation. (See Additional Resource 4 below.) This helps eliminate unnecessary steps in the background check process.
States are also required to have an independent appeal process to provide prospective direct patient access employees an opportunity to challenge a negative fitness determination. Additional information on the fitness determination process is available in the Statewide Eligibility Determinations resource document, and additional information on appeals is available in the Appeal Process resource document.
- 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 NBCP and can be found here: https://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf.
- CNA Resource paper on U.S. Equal Employment Opportunity Commission (EEOC) guidance for employers’ use of arrest and conviction records in making hiring decisions. Accessed at http://bgcheckinfo.cna.org/resources/state-specific-technical-assistance/eeoc-guidance
- Section 1128 of the Social Security Act: Exclusion of Certain Individuals and Entities From Participation in Medicare and State Health Care Programs. This section of the Social Security Act defines both the mandatory and permissive exclusions applicable to Federal health care programs and can be found here: https://www.ssa.gov/OP_Home/ssact/title11/1128.htm.
- Centers for Medicare & Medicaid Services National Background Check Program Third Solicitation. This document announces the third funding opportunity for States interested in participating in this program and can be found here: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/nbgcpgmsoli.pdf.