Why Background Checks Should Matter To Your Physician Group

Background checks performed the right way can help a physician group hire the right person and prevent mistakes that can affect patient care and the group's bottom line. However, there are legal pitfalls if background checks are not performed correctly, so physician groups should be aware of what laws apply and what steps should be taken to protect the privacy of applicants and employees.

There are various types of background checks that a health care employer may choose to perform, including criminal background checks, credit checks, education and employment history checks, reference checks, work authorization checks and drug screens. It is also very important that physician groups verify any required licenses of health care providers. The Alabama Board of Medical Examiners maintains a website (www.albme.org) where employers can check the licensure status of physicians and other providers. Licensure status for nurses can be checked on the Alabama Board of Nursing website (www.abn.state.al.us).

Healthcare providers who accept Medicare and Medicaid should make sure that no physicians or employees have been excluded by the government from such payments. It is a misconception that only physicians can be excluded from the Medicare program list. There have been several cases where nurses, physical therapists and other clinical specialists have been prosecuted. The Office of the Inspector General has a website for checking exclusions at www.oig.hhs.gov. The government will not pay for services rendered by individuals on the exclusion list so failure to discover an excluded employee can cost the practice money.

In addition to licensing and payment exclusion checks, it is a good idea to conduct other background checks on employees involved in direct patient care, personnel who handle confidential medical information and personnel who handle money. While an employer could decide to conduct background checks on all applicants, subject to any restrictions imposed by law, doing so can be costly. In most instances, employers only conduct background checks on the final candidate.

The offer of employment is made contingent on an acceptable background check. Criminal and credit checks can help determine if an individual has been involved in activity that may be relevant to that person's job duties. Background checks also help employers determine if individuals have been truthful about their qualifications.

Many times when a potential employee is told that there will be a background check, they will suddenly share details about their personal history that were not discussed during the initial interview. Background checks can also be helpful when employees engage in wrongdoing and another employee brings a lawsuit against the employer, such as a sexual harassment lawsuit. If the employer conducted a background check and the check did not reveal any previous wrongdoing by the accused employee, the employer may be able to avoid or limit liability in such a lawsuit.

In conducting background checks, employers must follow all applicable laws. The Fair Credit Reporting Act (FCRA) is a federal law that applies to background checks conducted by third parties hired by employers to perform the checks. The FCRA does not apply only to credit checks, as its name implies, but applies to other background checks as well, including criminal checks, employment and education checks, and reference checks, if performed by a third party.

The FCRA requires an employer who uses a third party vendor to conduct background checks to obtain written authorization from the employee or applicant prior to the check. The FCRA also requires that employers provide employees or applicants with a copy of the background report and an opportunity to correct the report if it is incorrect prior to taking any adverse action against the applicant or employee. FCRA requirements do not apply if an employer conducts background checks internally.

Federal law requires that all employees be authorized to work in the United States. It is therefore important to verify employees' authorization to work in the United States. If the person is not a U.S. citizen, he must present the proper paperwork to work in the United States. Most employers complete an I-9 form and collect the supporting paperwork as part of their usual hiring process. Employers can verify authorization to work at the U.S. Citizenship and Immigration Services website found at www.uscis.gov.

There are other federal laws containing requirements relating to background checks and how an employer may use information obtained through background checks. The Americans with Disabilities Act governs when employers may perform drug screens and medical examinations and how the results may be used.

Bankruptcy laws prohibit employers from terminating employees who have filed for bankruptcy, but several courts have found that the bankruptcy laws do not provide the same protection for applicants. State laws also may dictate when, how and on whom employers may perform background checks. It is therefore important that employers verify that any background checks they plan to conduct will be done lawfully.

Privacy concerns should also be considered. Much of the information collected in background checks is sensitive so employers should take steps to keep the information private. If a third party vendor is used to conduct background checks, the vendor should be instructed on who may receive the results on behalf of the employer and how the results should be transmitted. It is also a good idea to keep particularly sensitive information in files separate from employee personnel files.

Although access to personnel files should be limited, they are often accessed frequently and by a variety of employees. Access to particularly sensitive information should be more restricted to only those who have a need to know. Medical information must be kept separate from personnel files. In conclusion, background checks can be useful tools for making smart hiring decisions and limiting costs and liability. Taking the time to determine what background checks would benefit a physician practice is likely to pay off for the practice in the future.

Lisa Warren is a healthcare consultant with Warren, Averett, Kimbrough & Marino, LLC.

Ashley Hattaway is a Partner at Burr & Forman LLP in their labor and employment practice.

This article has been summarized from a segment on ResultsMatterRadio recorded on February 18, 2011. To listen to this segment, please visit www.resultsmatterradio.com.


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