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1 A how-to guide for implementing an employee screening process for your practice Compliments of 111a01_0413

2 Table of Contents Introduction. 2 More on HIPAA.. 2 Specifics of Title II... 2 We Can Relate... 2 Background Check Basics 3 The Benefits 3 How Background Checks Can Keep You HIPAA Compliant. 3 Implementing Background Check Procedures. 4 Maintaining Compliance.. 4 Online Databases vs. Courthouse Records 5 Using Criminal Records.. 5 Using Social Media 6 D.I.Y. or N-O-T?.. 7 Screen Your Screeners. 7 Pick Your Services.. 7 In Conclusion... 8 Disclaimer: The information presented in this document is for educational purposes only and should not be considered legal advice. 1

3 Introduction For as long as healthcare practices and organizations have existed, keeping patients information and records secure has been an ongoing challenge. This statement has never been truer than it is today, considering the significant advancements made in technology over the years, which have certainly influenced the way most practices operate and serve their patients. And let s not forget what HIPAA has brought to the table. More on HIPAA The Health Insurance Portability and Accountability Act better known as HIPAA was enacted by the U.S. Congress in 1996 and provides a number of rights and federal protection for individuals regarding healthcare. The HIPAA law is separated into different sections or titles each of which addresses its own issue and regulations. Specifics of Title II You may have noticed we skipped over Title I of HIPAA and there s a reason for that. While Title I pertaining to health insurance coverage protection is equally important in its own right, this white paper s intended focus is on the information privacy element found in Title II. As we just mentioned, Title II of HIPAA contains the Privacy Rule also known as the Standards for Privacy of Individually Identifiable Health Information which was implemented by the U.S. Department of Health and Human Services in The Privacy Rule regulates the use and disclosure of Protected Health Information (PHI) held by covered entities, including all health plans, clearinghouses and healthcare providers. Simply put, these entities are required to protect the privacy of patient information, conduct a risk assessment and develop a security plan. We Can Relate Collectively, your existing knowledge of HIPAA, along with the information presented above and good ol common sense make it fairly obvious that your practice is obligated to keep patient information private. But how can you ensure your staff will also comply? Sure, you can tell them, train them or even threaten them to do so; however, educating employees on HIPAA s Privacy Rule is only one part of the compliance equation. There s also the trust factor that comes into play, meaning you have to rely on your staff to handle patient information like it s their own. So what s the solution? Employee background checks. 2

4 Background Check Basics The Benefits Let s face it; the days when a firm handshake would seal a deal are long gone. Believe it or not, trusting your gut can go awry, too. But by conducting background checks on potential poten and existing employees, you know what you re getting and can leave out the guess work altogether. More specifically, background checks can: Determine individuals character, reputation and integrity Uncover undisclosed criminal convictions Uncover past instances of w workplace violence, theft, etc. Uncover resume falsification Determine individuals credit history Improve staff productivity Increase employee retention/reduce turnover Limit your practice s reputational risk How Background Checks Can Keep Y You HIPAA Compliant Conduct Background Checks You're in Compliance Bottom Line: Know Your Employees! Make Good Hiring Decisions Employees Do the "Right Thing" 3

5 Implementing Background Check Procedures In this section we re going to cover the essential components of a sound employee screening process. These elements can and should be applied whether you are conducting the screenings yourself or relying on a third-party vendor. Maintaining Compliance In this section, we will cover compliance with the FCRA (Fair Credit Reporting Act). This is the first and most critical step in the employee screening process, as FCRA violations can carry stiff penalties from the Federal Trade Commission (FTC), as well as potentially tarnish the violators good name. The purpose of the FCRA is to protect the privacy and accuracy of consumer information, including credit data. When the FCRA was originally passed in 1970, its requirements were intended exclusively for consumer reporting agencies (CRAs); however, the law has since been expanded to also include consumer report users (that s you). Some of the FCRA s more prominent provisions state: CRAs and users must have, and keep on file for at least 25 months, an authorization that clearly identifies the permissible purpose that has been signed by the consumer granting access to their personal credit history. Before a CRA or user can be given direct access to any credit bureau database, an onsite inspection is required to confirm that security requirements are met, as well as to verify the commercial nature of the company and that it is indeed a legitimate business entity. CRAs and users must notify consumers when/if an adverse action is taken on the basis of their personal information. CRAs and users must identify the company that provides the reports to ensure accuracy and completeness of the report. CRAs and users may not retain negative information for an excessive period of time. (Exact terms are defined by the FCRA.) CRAs and users must take steps to verify the accuracy of information disputed by a consumer. For more resources and links on the FCRA, visit the FTC s government site here: Bottom line: make sure your practice or background screening vendor is in full compliance with the FCRA before facilitating ANY screenings. 4

6 Online Databases vs. Courthouse Records If you go online right now and search for background check database or public records database, you ll likely generate an overwhelming number of sites offering quick and easy access to their online database for a minimal cost. What they probably won t tell you is proceed with caution. Sure, online databases have their perks. They are often inexpensive and their records can be pulled with just a few clicks. But relying solely on these databases can be a detriment to your hiring decisions and your practice not to mention they are not FCRA compliant unless the findings are verified at the courthouse level. The Swiss Cheese Effect Take a quick timeout and consider a block of Swiss cheese. As a whole, it appears to be solid and complete, right? Now peel off a slice and what do you see? (Hint: holes.) This is what we refer to as The Swiss Cheese Effect, which can be applied to many online database results. When conducting a database search, everything appears to be there. But start breaking it apart and you may find that information is missing, outdated or simply inaccurate. Additionally, depending on the area of the country, some counties do not even contribute to a centralized database for their states. In other cases, databases may only be updated on a monthly, quarterly or semi-annual basis. Courthouse records, on the other hand, are a more reliable, accurate and up-to-date resource. Plus, like databases, this information can also be obtained relatively inexpensively. Bottom line: we re not saying online databases are bad. In fact, when used correctly they are a great resource. But they should not be your only/final solution. Instead databases should be viewed as a supplement to your other research, including obtaining records directly from the courthouse. Using Criminal Records Can you use job applicants criminal histories in your hiring decision process? The simple answer is yes. Unfortunately, however, it s not that cut and dry. In April 2012, the Equal Employment Opportunity Commission (EEOC) released its guidance on the use of arrest and conviction records for employers a new interpretation of Title VII of the 5

7 Civil Rights Act of Title VII advises employers on the risk of discriminating against job candidates when making hiring decisions based on arrest and conviction records. More specifically, while employers are allowed to consider criminal records in hiring decisions, excluding all applicants with criminal records could be a violation of discrimination laws due to a disparate impact on racial and ethnic minorities. So what can you ask, you ask? Per the EEOC s recommendation, employers should no longer ask applicants about convictions on job applications. Furthermore, inquiries that do arise regarding convictions should be limited to job-related questions. For arrests in general, the EEOC suggests that consideration of arrest records should only be made if that conduct makes the applicant unfit for a position. Bottom line: Acquiring information about a job applicant s criminal history is not prohibited. It is important, however, to verify the identity of your applicant, as well as ensure the information you obtain and use is confirmed at the courthouse level. In other words, handle with care. Using Social Media It s safe to say that social networking in recent years has become one of the most pervasive new technologies, consuming at least a small portion of our day-to-day lives. This recent boom in social activity also presents an opportunity for practices like yours to monitor current or potential employees. Or does it? Following an FTC investigation conducted in 2011, the government agency determined that employers and service providers may compile publicly-available records found on social networking and related sites with one caveat. This information can only date back seven years. This means any information that has been posted to individuals social networking accounts within the past seven years information that can be accessed via web-based searches may be used to assist in determining their integrity, character and reputation. Of course, you must still comply with other FCRA requirements, as well. Bottom line: We all know today s employers are monitoring their employees /applicants online activity, which is reasonable and acceptable. Just keep in mind that this practice is NOT FCRA compliant, so your hiring decisions should NOT be based solely on the information you find. 6

8 D.I.Y. or N-O-T? Implementing an employee screening process in your practice is the right decision there s no question about that. What you do need to determine, though, is if you should do it yourself or rely on the expertise of a third-party vendor. Before you make your decision, ask yourself the following questions. If you answer no to most or any of these questions, it may be in your best interest to seek outside assistance. 1. Do you have the manpower to support an employee screening initiative? 2. Do you have a thorough knowledge of the laws and regulations surrounding background check practices (i.e., FCRA, EEOC, etc.)? 3. Are you familiar with the appropriate forms you must provide to and have completed by your applicants/employees? 4. Do you have a network of private investigators throughout the country who can physically search courthouse records? Screen Your Screeners Let s assume you ve decided to bring in a third-party vendor to facilitate your practice s employee background checks. Who can you trust? Where should you look? Well, like the online databases we mentioned previously, you have a plethora of options. In fact, an online search will reveal more than 1,800 companies just in the U.S. that provide some kind of background check service. Therefore, when evaluating your choices, make sure your potential providers: Are fully FCRA compliant Follow all federal, state and local laws regarding employee screenings Specialize in providing employee screenings for healthcare practices or organizations Are familiar with the regulations your practice should be aware of during the screening process Have the ability to go directly to the courthouse Partner with your practice and look out for your best interests Provide your account with a direct point of contact someone you feel comfortable with who is there to educate, guide and consult Pick Your Services Once you ve selected a suitable provider to start conducting employee background checks, you ll need to decide which services to order so you can hit the ground running the next time you need to make a hire. When determining the screening services that are most important to you, start with the basics. For example, order a search that will identify and confirm the name and any aliases your prospective hire may use, or has used (maiden, hyphenated, etc.), as well as a search that will identify where they may have lived or worked previously. 7

9 Following the confirmation of the candidates identity, the next logical step is to check criminal records. As you already know, your service provider should conduct their searches in the courthouse, which is the surest way of collecting accurate, timely and confirmed information. If the subjects have a criminal history, courthouse records will disclose the nature of the offense, when it took place and whether or not the individual was charged and/or convicted. Your provider may also use online database records to supplement their searches and fill in the gaps. Screening providers offer many other services, in addition to criminal record searches, that can aid in making the right hiring decisions. Many of those services include: Healthcare sanctions Professional licensing Education verification Employment verification Employment credit reports Drug testing Your service provider can and should advise you on the ideal add-on services for your specific practice and unique situation. In Conclusion Employee background checks are no longer a luxury; they re a necessity. This is especially true for today s healthcare practices, where employees will no doubt be handling highly sensitive patient information and records. But even beyond HIPAA regulations, it s in your practice s best interest to create a safe work environment and proactively mitigate costs that could result from fraud, litigation or re-hiring. Ultimately, by screening your employees you will realize more confidence and less regret throughout the hiring process. NCO Financial Investigative Services (FIS), a proud MGMA AdminiServe Partner, has been assisting healthcare practices with employee screening services for over a quarter-century. If you would like more information on our comprehensive solutions or any of the information presented in this white paper, please contact Keli Sanders, Senior Investigative Consultant, at or We also invite you to visit our website at like us on Facebook at and follow us on 8

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