Deadly errors and politics betray a hospital's promise
Los Angeles Times, December 5, 2004
Martin Luther King Jr./Drew Medical Center - Over the last year, reports by journalists and regulators have offered stark glimpses of failings at King/Drew: Nurses neglecting patients as they lay dying. Staff failing to give patients crucial drugs or giving them toxic ones by mistake. Guards using Taser stun guns on psychiatric patients, despite an earlier warning to stop.
Wednesday, October 20, 2004
Slaying quickens push for med school checks
By Erik Brady and Robert Davis, USA TODAY
Robert Howard looked like an ideal candidate for medical school. His grades were good and his recommendations solid. Plus he had a certain intangible that made him stand out from the crowd: He was an Olympian who was among the finest triple jumpers in the world.
But Howard, 28, also had a violent temper, which officials at the University of Arkansas for Medical Sciences (UAMS) would not learn until mid August, when the third-year medical student killed his wife and himself, according to police.
They say he stabbed her about three dozen times at their home before jumping out of a 10th-story window on campus. His wife, Robin Mitchell, 31, was chief neurosurgery resident at the UAMS College of Medicine in Little Rock.
Evidence of Howard's violent streak was available through a criminal background check. He pleaded guilty to first-degree assault in 1998; the conviction on a Class A misdemeanor was part of a plea bargain under which felony charges of residential burglary and terroristic threats were dropped. He was accused of breaking down a door and menacing a man with a .380-caliber semiautomatic pistol.
Friday, September 03, 2004
Background Checks: What Employers Should Know
by Lisette Hilton
Charles Cullen, a nurse who admitted to killing 30 to 40 patients in his 16-year career, didn’t seem to have trouble getting jobs at hospitals and nursing homes in New Jersey and Pennsylvania.
The 43-year-old Cullen had been fired or forced to resign from at least six healthcare facilities, according to an article published December 16, 2003, in The New York Times. Still, the nurse had a clean slate according to medical licensing boards in New Jersey, and though one hospital made a report to Pennsylvania authorities, it was not clear what the hospital reported or what came of it.
This case and others raise serious issues, including how employers share information with other employers about employees’ pasts. It also puts under the spotlight hiring practices and the ability to get a clear picture of a person’s character and past.
Common but Often an Imperfect Practice
It seems odd to have to check the backgrounds of nurses — a profession of people known for their caring and nurturing qualities. Ironically, Cullen justified his delivery of toxic drug doses to unknowing patients as his way of alleviating pain and suffering.
But today’s hospitals aren’t only doing background checks to prevent mistakenly hiring someone like Cullen; rather, many healthcare employers are trying to avoid the potential for medication and other errors. Conducting background checks is one way to make sure people act as responsible citizens and have the credentials they say they do.
Becky Vizzone, a human resources consultant for nursing at Children’s Memorial Hospital, Chicago, IL, thinks background checks are vital. Children’s Memorial requires references and follows up with past employers to see if a nurse candidate is eligible for rehire at previous employer institutions. Checking for “rehire eligibility” is an added measure because most employers do not divulge information about former employees’ performance, but they are more inclined to indicate whether they’d hire that employee again or not, Vizzone says.
Children’s Memorial also verifies dates of employment and checks licensing and criminal pasts.Still, Vizzone argues that despite their best efforts, “…once an individual gets here, it’s conceivable that things can happen.” To combat the possibility, the hospital does ongoing competency checks.
Gloria Cohen, RN, MPS, assistant executive director for human resources, North Shore University Hospital, Manhasset, NY, says that North Shore has been conducting criminal background checks since January 1999 on all new hires, including nurses. “We do criminal, social and reference checks …,” she says. The hospital also conducts degree verifications and, for nurses who work in positions involving financial matters, the hospital will run credit checks.
Cohen finds that the two most valuable investigations of potential employees are the criminal background check and New York state license verification online. “You can go into New York State on the web and look at nurses’ licenses to make sure that they are in good standing. Sometimes, it goes back beyond seven years,” she says. “The [social security check] is to make sure that the social security numbers that they are providing are correct.”
North Shore uses an outside source for conducting the background checks, according to Cohen. The cost for each background check runs from $30 to $105, depending on the extent of the check, she says. But the practice is a worthwhile one because it sends the message that North Shore is going the extra mile to ensure that it employs “safe practitioners,” she says.
Background Check As, Bs, and Cs
Background information can vary greatly qualitywise, according to Greg H. Mohn, CEO and president, Personnel Research Services, based in Minneapolis, MN.
“You use credit bureaus, county courthouses, federal courthouses, you have motor vehicle [data]…. There are thousands of places to get that information,” says Mohn. “What makes it even more complicated is you have a lot of people who buy data from different sources. They roll it all together and advertise that they have this great database. But many times, that database contains incomplete and outdated information.”
Mohn’s firm has audited government databases and found that some counties don’t update the data on a regular basis and criminal databases might only contain felonies and gross misdemeanors. For example, he says, the Minnesota state database, which is advertised as a complete database, is missing from 40% to 50% of all conviction records in the state.
County courthouses, according to Mohn, tend to be reliable sources and might even include dismissed charges. The caveat is that while employers can look at dismissed charges, they cannot, by law, deny someone employment due to a dismissed record.
Must Haves for Hiring Nurses
Mohn says that employers hiring nurses should conduct social security checks, to verify that they are who they say they are; county criminal searches for the past seven years in any counties in which they’ve worked; a federal criminal search; employment verification; and an education verification. Employers hiring nurses should also refer to the National Practitioner Databank and the Office of Inspector General database.
Employers should beware that negligent hiring lawsuits are on the rise, according to Mohn. “If you hire someone with a criminal past and he or she commits a crime against an employee or customer, you are liable because you should have known. That’s not a law but there are those lawsuits and the majority of those lawsuits are being lost by employers who don’t do background checks.”
Employers’ Obligations: To Tell or Not to Tell?
Barry J. Nadell, president, InfoLink Screening Services, Inc. based in Los Angeles, CA, says it’s common that former employers will not divulge vital information about former employees — even if it could result in a dangerous situation for the new employer.
Employers fear being sued for defamation of character and many are when they utter negative things about former employees. The tide might be turning, however, Nadell says. “There are some states that have started looking into this area and are passing laws that would make it easier for employers to give truthful information. The best one we’ve seen is Hawaii, and there is legislation pending in other states.”
Nadell is involved in writing new legislation for California. The state of California has agreed to sponsor a bill for 2004 that would make it a lot easier for employers to be honest and give information, he says. According to Nadell, section 47 of the California civil code currently makes it a qualified privilege to give information about former employees, but the qualification is such that anyone could sue anybody. Nadell and others are suggesting that the language be changed to say that an employer who provides information or an opinion to a prospective employer about a current or former employee’s job performance is “reputably presumed to be acting in good faith and shall have a qualified immunity from civil liability for disclosing the information and for the consequences of the disclosure.”
“What I’m saying is the good faith presumption shall be rebuttable by showing clear and convincing evidence that the information or opinion disclosed was intentionally malicious and knowingly false or misleading,” says Nadell.
In the meantime, however, there are lots of other ways to uncover something shady about potential employees’ pasts, Nadell says. “What we’ve found in doing thousands of background checks is that, generally, there is going to be something that turns up that will give you an indication of a person’s character.”
That’s where employers who check previous employment dates and education claims, as well as criminal and social security data, might uncover a flat out lie or embellishment of the truth. It’s not 100% insurance policy that a hospital would avoid hiring dangerous, violent, or criminal employees. But it helps to weed out a lot of the bad apples.
Lisette Hilton is a freelance healthcare reporter, specializing in covering local, national, and worldwide news for nurses, pharmacists, physicians, and other allied health professionals.
Wednesday, September 01, 2004
Perfecting the Job Application
Nursing Spectrum
by Lisette Hilton
Falsifying applications is commonplace among job candidates. A nurse applying to your institution might not outright lie, but rather stretch the truth.
Barry J. Nadell, president, InfoLink Screening Services, Inc., based in Los Angeles, CA, talked with a client recently about a job candidate who stretched the truth, indicating on his job application where he worked (which was true) but saying he was there three years longer than he actually was. “What did he do during those three years?” Nadell asks.
Employers can better screen candidates’ characters, skills, and criminal potential by having “solid” job applications and then following with background checks on the information. You might not only uncover a criminal conviction, but perhaps, a more subtle black eye of character — a white lie.
The Long and Short of Applications
In an effort to make it easy on job candidates and HR departments, many employers make job applications quick and easy. Nadell calls them short forms (the front and back of a piece of paper). The problem is they fail to ask many questions that can be revealing and are legal to ask.
For example, he says, many employers don’t ask potential employees about previous Driving Under the Influence (DUI) convictions. It’s a grey area, he says — especially if that employee is not expected to drive for her job. But you should ask it, Nadell says. The question is legal, according to the United States Equal Employment Opportunity Commission (EEOC). If the employee lies and says “no,” and you run a background check, you might uncover the lie.
Other questions to include are: Tell us about periods of unemployment. Why are you applying with our particular company? Don’t shy away from leaving a paragraph for the answers. The answers reveal not only the information but also a candidate’s communication skills and writing ability. Nadell also recommends that employers ask about job skills in detail.
Employers should devote a page or so to legal issues, including things such as a paragraph on at-will employment and one about arbitration (if that applies).
Nadell suggests that employers make it clear that candidates need be forthright on the application by including a clause: “If you are convicted of a crime during your employment or during the period of application, you are required to tell us.” And have the candidate agree to that on the form. And employers should also almost boast about their practice of doing background checks to deter people from lying on the application. Often, Nadell says, if employers do mention it on the application, “… it’s in the smallest print possible in the back of the application. Our application has it in a very distinct box on the front of the application at the top, where is says. ‘We’re concerned about violence in the workplace, theft, and falsified applications. We do background checks on all candidates.”
The same goes for drug testing policies. Employers might word it: “We’re concerned about drugs in the workplace, and we have a drug free workplace policy. We do drug testing on all candidates.”
These recommendations are not only for print applications. In fact, Nadell says, people have more room online to ask revealing questions. Include that you do background checks even on job postings to deter those you wouldn’t want to hire, anyway. Making your policies clear also sends the message that you care about your current employees and clients, according to Nadell.
Lisette Hilton is a freelance healthcare reporter, specializing in covering local, national, and worldwide news for nurses, pharmacists, physicians, and other allied health professionals.
Nursing Spectrum
by Lisette Hilton
Falsifying applications is commonplace among job candidates. A nurse applying to your institution might not outright lie, but rather stretch the truth.
Barry J. Nadell, president, InfoLink Screening Services, Inc., based in Los Angeles, CA, talked with a client recently about a job candidate who stretched the truth, indicating on his job application where he worked (which was true) but saying he was there three years longer than he actually was. “What did he do during those three years?” Nadell asks.
Employers can better screen candidates’ characters, skills, and criminal potential by having “solid” job applications and then following with background checks on the information. You might not only uncover a criminal conviction, but perhaps, a more subtle black eye of character — a white lie.
The Long and Short of Applications
In an effort to make it easy on job candidates and HR departments, many employers make job applications quick and easy. Nadell calls them short forms (the front and back of a piece of paper). The problem is they fail to ask many questions that can be revealing and are legal to ask.
For example, he says, many employers don’t ask potential employees about previous Driving Under the Influence (DUI) convictions. It’s a grey area, he says — especially if that employee is not expected to drive for her job. But you should ask it, Nadell says. The question is legal, according to the United States Equal Employment Opportunity Commission (EEOC). If the employee lies and says “no,” and you run a background check, you might uncover the lie.
Other questions to include are: Tell us about periods of unemployment. Why are you applying with our particular company? Don’t shy away from leaving a paragraph for the answers. The answers reveal not only the information but also a candidate’s communication skills and writing ability. Nadell also recommends that employers ask about job skills in detail.
Employers should devote a page or so to legal issues, including things such as a paragraph on at-will employment and one about arbitration (if that applies).
Nadell suggests that employers make it clear that candidates need be forthright on the application by including a clause: “If you are convicted of a crime during your employment or during the period of application, you are required to tell us.” And have the candidate agree to that on the form. And employers should also almost boast about their practice of doing background checks to deter people from lying on the application. Often, Nadell says, if employers do mention it on the application, “… it’s in the smallest print possible in the back of the application. Our application has it in a very distinct box on the front of the application at the top, where is says. ‘We’re concerned about violence in the workplace, theft, and falsified applications. We do background checks on all candidates.”
The same goes for drug testing policies. Employers might word it: “We’re concerned about drugs in the workplace, and we have a drug free workplace policy. We do drug testing on all candidates.”
These recommendations are not only for print applications. In fact, Nadell says, people have more room online to ask revealing questions. Include that you do background checks even on job postings to deter those you wouldn’t want to hire, anyway. Making your policies clear also sends the message that you care about your current employees and clients, according to Nadell.
Lisette Hilton is a freelance healthcare reporter, specializing in covering local, national, and worldwide news for nurses, pharmacists, physicians, and other allied health professionals.
Wednesday, August 25, 2004
New details come in murder case - Woman, 79, was beaten to death
By Darla Hernandez
Flint Township — (08/24/04)--There were new details Tuesday in the brutal murder of a 79-year-old Flint Township widow.
According to authorities, the suspect met a family member of the widow about a year ago. That's when the lives of the suspect and victim became intertwined. Darla Hernandez had more.
Police say the live-in caretaker who was three times the size of the elderly woman and was hired just a few weeks ago by family to help the widow was Tuesday charged with her murder.
A distraught family listened as 37-year old Rosie Starnes was charged with four felony counts including armed robbery and first degree murder of 79-year-old Alvera Nowosislosky.
Police say Nowosislosky was found in her bedroom beaten to death with a claw hammer Sunday morning. Genseee County Prosecutor Art Busch believes Starnes murdered the widow, who was confined to a wheelchair.
The family, who did not want to go on camera, says they grew up in the house and can't believe a woman they trusted could do something so horrible.
Authorities say this is a sad reminder for the public to always do a background check before hiring someone to do this type of work. As for the defendant, she's scheduled to be back in court Friday for her preliminary hearing.
By Darla Hernandez
Flint Township — (08/24/04)--There were new details Tuesday in the brutal murder of a 79-year-old Flint Township widow.
According to authorities, the suspect met a family member of the widow about a year ago. That's when the lives of the suspect and victim became intertwined. Darla Hernandez had more.
Police say the live-in caretaker who was three times the size of the elderly woman and was hired just a few weeks ago by family to help the widow was Tuesday charged with her murder.
A distraught family listened as 37-year old Rosie Starnes was charged with four felony counts including armed robbery and first degree murder of 79-year-old Alvera Nowosislosky.
Police say Nowosislosky was found in her bedroom beaten to death with a claw hammer Sunday morning. Genseee County Prosecutor Art Busch believes Starnes murdered the widow, who was confined to a wheelchair.
The family, who did not want to go on camera, says they grew up in the house and can't believe a woman they trusted could do something so horrible.
Authorities say this is a sad reminder for the public to always do a background check before hiring someone to do this type of work. As for the defendant, she's scheduled to be back in court Friday for her preliminary hearing.
Tuesday, August 17, 2004
Background checks root out job seekers' tall tales
You know who you are. The job hunter who littered his resume with untruths. Or the candidate who feigned a clean criminal record.
The temptation to lie while job-hunting might be strong given the tight economy. But liars beware: More companies are using background checks to vet job applicants. Telling the truth, however tawdry, can only help you get that job.
Take this example from Barry Nadell, president of InfoLink Screening Services in California: An InfoLink client, a hotel owner, did a background check on a potential hire, revealing a prior conviction for prostitution. She wasn't hired, but not because of her illegalities. She had lied on her job application.
Companies have good reason to distrust job applicants. Thirty percent to 40 percent of candidates fudge the truth, according to the Privacy Rights Clearinghouse. Remember University of Notre Dame football coach George O'Leary? He lost his job for lying on his resume about his academic and athletic background.
About 75 percent of businesses surveyed by the national outplacement firm Challenger, Gray & Christmas Inc. said they have been the victim of untruthful hires. The financial hit? About $7,000 for a salaried employee; $10,000 for a midlevel worker; and $40,000 to recruit a new senior executive, according to Recruiting Times.
…
Companies, however, can't freely wander through a person's background. There are guidelines: Officials must get written permission from the applicant; they can use the information only if it specifically applies to the job; and they must give a copy of the report to the candidate if it prompts their dismissal. Did a potential hire, for example, once get convicted for assault - maybe decking a bar patron as a youth? Can't use it against him if he's applying for an engineering job.
What about an accounting candidate who declared bankruptcy? Feel free to reject that person. (Do you really want someone balancing your books who can't balance his or her own?)
Applicants must not lie about past indiscretions. But don't bring them up if you don't have to. "The first thing out of your mouth in an interview shouldn't be, 'I have bad credit,'" said Bob Banuski, president and founder of the Syracuse-based Amtek Human Resources Consultants, which has offices in Rochester.
At InfoLink, 38 percent of its searches in 2004 found problems in applicants' motor vehicle reports. An additional 23.3 percent lied about former employment. Eight percent tried to hide criminal convictions.
Businesses' fear that they will be held liable or lose money from bad hires has fueled growth in such services, Nadell added. From 1996 to 2003, the number of companies doing general background checks jumped from 66 percent to 82 percent, according to the Society for Human Resource Management.
Even InfoLink - a background checking company - isn't immune to fibbing job candidates. One such check revealed a warrant for a candidate's arrest. Another applicant lied about a burglary conviction.
You know who you are. The job hunter who littered his resume with untruths. Or the candidate who feigned a clean criminal record.
The temptation to lie while job-hunting might be strong given the tight economy. But liars beware: More companies are using background checks to vet job applicants. Telling the truth, however tawdry, can only help you get that job.
Take this example from Barry Nadell, president of InfoLink Screening Services in California: An InfoLink client, a hotel owner, did a background check on a potential hire, revealing a prior conviction for prostitution. She wasn't hired, but not because of her illegalities. She had lied on her job application.
Companies have good reason to distrust job applicants. Thirty percent to 40 percent of candidates fudge the truth, according to the Privacy Rights Clearinghouse. Remember University of Notre Dame football coach George O'Leary? He lost his job for lying on his resume about his academic and athletic background.
About 75 percent of businesses surveyed by the national outplacement firm Challenger, Gray & Christmas Inc. said they have been the victim of untruthful hires. The financial hit? About $7,000 for a salaried employee; $10,000 for a midlevel worker; and $40,000 to recruit a new senior executive, according to Recruiting Times.
…
Companies, however, can't freely wander through a person's background. There are guidelines: Officials must get written permission from the applicant; they can use the information only if it specifically applies to the job; and they must give a copy of the report to the candidate if it prompts their dismissal. Did a potential hire, for example, once get convicted for assault - maybe decking a bar patron as a youth? Can't use it against him if he's applying for an engineering job.
What about an accounting candidate who declared bankruptcy? Feel free to reject that person. (Do you really want someone balancing your books who can't balance his or her own?)
Applicants must not lie about past indiscretions. But don't bring them up if you don't have to. "The first thing out of your mouth in an interview shouldn't be, 'I have bad credit,'" said Bob Banuski, president and founder of the Syracuse-based Amtek Human Resources Consultants, which has offices in Rochester.
At InfoLink, 38 percent of its searches in 2004 found problems in applicants' motor vehicle reports. An additional 23.3 percent lied about former employment. Eight percent tried to hide criminal convictions.
Businesses' fear that they will be held liable or lose money from bad hires has fueled growth in such services, Nadell added. From 1996 to 2003, the number of companies doing general background checks jumped from 66 percent to 82 percent, according to the Society for Human Resource Management.
Even InfoLink - a background checking company - isn't immune to fibbing job candidates. One such check revealed a warrant for a candidate's arrest. Another applicant lied about a burglary conviction.
Thursday, June 10, 2004
Security System at Hospitals Draws Scrutiny
NY Times , 2004-04-22 10:55
New York City's 11 public hospitals have no common security system, no uniform method of screening visitors or restricting their access to certain wards of a hospital building. Background checks on new employees can vary widely from one institution to another.
In fact, despite the employment of its own 850-member police force, and even after years of sporadic, sometimes deadly violence across the city's sprawling public health care network, the municipal hospitals have put in place relatively few systemwide security measures.
Hospital officials say the hospitals and the more than 100 community clinics, diagnostic centers and nursing homes in the system share security concerns every other month, at meetings of the major facilities' security directors. But the officials acknowledge that the system leaves to each institution the decision on how and whether to disclose its problems.
The holes in hospital security have been painfully evident this month, first when a 13-year-old girl was raped in the pediatric ward of Bellevue Hospital Center, in Manhattan, then days later when a Bellevue patient-care assistant with a criminal record was arrested on charges of selling cocaine and guns at the hospital.
Over the years, such problems have not been restricted to Bellevue or to public hospitals. In 1999, a visitor to Victory Memorial Hospital, a private institution in Dyker Heights, Brooklyn, slashed his father's throat and beat another patient to death with a hammer. And in 1998, a surgeon at Lutheran Medical Center, in Sunset Park, Brooklyn, was stabbed four times in an elevator soon after he withdrew money from an automated teller machine.
But officials at the Health and Hospitals Corporation, which runs the city system, acknowledge that because their institutions are often in neighborhoods where crime is more prevalent and because they serve a clientele that includes inmates from city jails and patients with severe mental illnesses, they are more likely to have to contend with crime.
Dr. Benjamin K. Chu, the president of the Health and Hospitals Corporation, defended the system's security procedures. "I think we do a very good job, considering the challenge," he said. But he added that the agency has waged a constant struggle to find the right balance between the need of the public and a vast array of medical professionals to have access to its centers and the desire to keep the hospital hallways secure.
"If we wanted to lock down the facilities, it would be a much easier job,'' Dr. Chu said in an interview last week. "But you can't really do that in a hospital setting. And you wouldn't want to.''
Mayor Michael R. Bloomberg agrees. "There's a limit to how much security you can provide," Mr. Bloomberg said at a press conference yesterday. "You just can't have a security guard every two feet on every floor of every hospital. I think we clearly can do a better job.'' He added that Dr. Chu "is working with the Police Department to try to find ways to do a better job."
Public hospitals in New York City are already like small cities. Roughly 100,000 patients come through their doors each week for outpatient procedures, and 20,000 more visit their emergency rooms, often in the company of family members or friends. The system employs some 35,000 people. About 5,500 patients occupy hospital beds throughout the system each day, with thousands more people coming to visit those patients.
Corporate offices or government buildings can install metal detectors or have armed guards patrolling the premises. But medical professionals say a hospital needs to preserve its fundamental sense of refuge and care.
"The challenge is we have to let you in, and we want to control where you go, and we want to do this without making you feel like you're in a prison,'' said Frank Taormina, the president of the Metropolitan Healthcare Security and Safety Directors Association, a group of security officials from private and municipal hospitals.
The majority of violent or disruptive incidents occur in the city's emergency rooms, and the New York Police Department is frequently called to assist hospital security officers. In 2003, the department was called about 434 occurrences at Jacobi Medical Center, in the Pelham Gardens section of the Bronx. Eighteen of those involved criminal activity, including two that were serious. The police similarly responded to 894 calls last year at Kings County Hospital Center in Prospect-Lefferts Gardens, Brooklyn, including 21 for crimes, eight of them serious. In the last 12 months, police officers were called to Bellevue 522 times, 12 for criminal activity.
But city hospitals do not merely wait until there is an attack or other crime to put new security measures into place, Dr. Chu said. Well before the most recent instances at Bellevue, officials at Lincoln Medical and Mental Health Center in the South Bronx began testing a system that takes a picture of every visitor receiving a pass that gives access to patient wards.
"If the cameras work at Lincoln, I think we'll apply that across the system,'' Dr. Chu said.
After the 9/11 attack, most city hospitals increased the use of surveillance cameras in and around their facilities. Similarly, some increased their use of key cards - special identification cards that are needed to unlock doors providing access from one area of the hospital to another. And some put in place color-coded visitor passes, which should, in theory, make it easier to spot visitors who wander into areas where they don't belong.
The problem with those systems is that patients and visitors frequently have to go to many different wards, said Susan C. Waltman, a senior vice president of the Greater New York Hospital Association. "They need to be able to move around,'' she said, "and if you slow that down, you create a big complication for us as well as for the people who need care.''
Other security measures are applied inconsistently across the city's public health care system. Background checks of new employees are supposed to be conducted by human resource directors at each hospital, but no one in the central administration verifies that they have been done.
After the arrest this month of the Bellevue employee with a criminal record, Dr. Chu ordered administrators to begin reviewing the background checks on employees hired in 2002 or earlier. He also appointed a new security overseer at Bellevue last week and hired an outside consultant to review procedures there.
But there is no central administrator focused solely on security across the entire city system, a policy that Dr. Chu defended in an interview. He acknowledged that decisions about even the most basic practices, like how to screen hospital visitors, are left to each facility. "The practices are probably variable,'' Dr. Chu said. But he added that there is a reason to decentralize decisions about security procedures. "Each facility has local relationships with the N.Y.P.D. and local relations with the community that they have to pay attention to,'' he said.
Some of the hospital security officers are less certain of that. At a press conference at Bellevue yesterday, officials of Teamsters Local 237, the union representing hospital security officers, called for the hiring of more officers and better training.
Four years ago, the Giuliani administration sought to replace the hospital police force with private security guards, a move it claimed would save the Health and Hospitals Corporation $10 million annually. The plan was dropped in 2001 after stiff opposition from the union and the City Council.
The hospital officers have previously pushed legislators in Albany for the right to carry weapons, a measure that is opposed by the hospital administration.
More basic reforms of the hospital police system have also been rejected. Having its own security force is not unique to the city hospital system; the Department of Education also employs a dedicated force of school safety officers.
But since 1999, the school officers have been part of the New York Police Department. Unlike the school officers, hospital safety officers are hired individually by each institution, and there is no coordination among them in the deployment or oversight of the officers.
Since the recent incidents at Bellevue, the Police Department has begun "a very, very labor-intensive job'' assessing Bellevue's security efforts, said Raymond W. Kelly, the police commissioner. Some preliminary recommendations have already been made, including improving the deployment of guards, ensuring that construction workers are properly identified and employing measures as simple as making sure that locks work.
The department will also conduct preliminary reviews at all of the other city hospitals to determine if more comprehensive assessments are needed. However, Dr. Chu said he doubted that all of them needed the top-to-bottom review being undertaken by Bellevue.
NY Times , 2004-04-22 10:55
New York City's 11 public hospitals have no common security system, no uniform method of screening visitors or restricting their access to certain wards of a hospital building. Background checks on new employees can vary widely from one institution to another.
In fact, despite the employment of its own 850-member police force, and even after years of sporadic, sometimes deadly violence across the city's sprawling public health care network, the municipal hospitals have put in place relatively few systemwide security measures.
Hospital officials say the hospitals and the more than 100 community clinics, diagnostic centers and nursing homes in the system share security concerns every other month, at meetings of the major facilities' security directors. But the officials acknowledge that the system leaves to each institution the decision on how and whether to disclose its problems.
The holes in hospital security have been painfully evident this month, first when a 13-year-old girl was raped in the pediatric ward of Bellevue Hospital Center, in Manhattan, then days later when a Bellevue patient-care assistant with a criminal record was arrested on charges of selling cocaine and guns at the hospital.
Over the years, such problems have not been restricted to Bellevue or to public hospitals. In 1999, a visitor to Victory Memorial Hospital, a private institution in Dyker Heights, Brooklyn, slashed his father's throat and beat another patient to death with a hammer. And in 1998, a surgeon at Lutheran Medical Center, in Sunset Park, Brooklyn, was stabbed four times in an elevator soon after he withdrew money from an automated teller machine.
But officials at the Health and Hospitals Corporation, which runs the city system, acknowledge that because their institutions are often in neighborhoods where crime is more prevalent and because they serve a clientele that includes inmates from city jails and patients with severe mental illnesses, they are more likely to have to contend with crime.
Dr. Benjamin K. Chu, the president of the Health and Hospitals Corporation, defended the system's security procedures. "I think we do a very good job, considering the challenge," he said. But he added that the agency has waged a constant struggle to find the right balance between the need of the public and a vast array of medical professionals to have access to its centers and the desire to keep the hospital hallways secure.
"If we wanted to lock down the facilities, it would be a much easier job,'' Dr. Chu said in an interview last week. "But you can't really do that in a hospital setting. And you wouldn't want to.''
Mayor Michael R. Bloomberg agrees. "There's a limit to how much security you can provide," Mr. Bloomberg said at a press conference yesterday. "You just can't have a security guard every two feet on every floor of every hospital. I think we clearly can do a better job.'' He added that Dr. Chu "is working with the Police Department to try to find ways to do a better job."
Public hospitals in New York City are already like small cities. Roughly 100,000 patients come through their doors each week for outpatient procedures, and 20,000 more visit their emergency rooms, often in the company of family members or friends. The system employs some 35,000 people. About 5,500 patients occupy hospital beds throughout the system each day, with thousands more people coming to visit those patients.
Corporate offices or government buildings can install metal detectors or have armed guards patrolling the premises. But medical professionals say a hospital needs to preserve its fundamental sense of refuge and care.
"The challenge is we have to let you in, and we want to control where you go, and we want to do this without making you feel like you're in a prison,'' said Frank Taormina, the president of the Metropolitan Healthcare Security and Safety Directors Association, a group of security officials from private and municipal hospitals.
The majority of violent or disruptive incidents occur in the city's emergency rooms, and the New York Police Department is frequently called to assist hospital security officers. In 2003, the department was called about 434 occurrences at Jacobi Medical Center, in the Pelham Gardens section of the Bronx. Eighteen of those involved criminal activity, including two that were serious. The police similarly responded to 894 calls last year at Kings County Hospital Center in Prospect-Lefferts Gardens, Brooklyn, including 21 for crimes, eight of them serious. In the last 12 months, police officers were called to Bellevue 522 times, 12 for criminal activity.
But city hospitals do not merely wait until there is an attack or other crime to put new security measures into place, Dr. Chu said. Well before the most recent instances at Bellevue, officials at Lincoln Medical and Mental Health Center in the South Bronx began testing a system that takes a picture of every visitor receiving a pass that gives access to patient wards.
"If the cameras work at Lincoln, I think we'll apply that across the system,'' Dr. Chu said.
After the 9/11 attack, most city hospitals increased the use of surveillance cameras in and around their facilities. Similarly, some increased their use of key cards - special identification cards that are needed to unlock doors providing access from one area of the hospital to another. And some put in place color-coded visitor passes, which should, in theory, make it easier to spot visitors who wander into areas where they don't belong.
The problem with those systems is that patients and visitors frequently have to go to many different wards, said Susan C. Waltman, a senior vice president of the Greater New York Hospital Association. "They need to be able to move around,'' she said, "and if you slow that down, you create a big complication for us as well as for the people who need care.''
Other security measures are applied inconsistently across the city's public health care system. Background checks of new employees are supposed to be conducted by human resource directors at each hospital, but no one in the central administration verifies that they have been done.
After the arrest this month of the Bellevue employee with a criminal record, Dr. Chu ordered administrators to begin reviewing the background checks on employees hired in 2002 or earlier. He also appointed a new security overseer at Bellevue last week and hired an outside consultant to review procedures there.
But there is no central administrator focused solely on security across the entire city system, a policy that Dr. Chu defended in an interview. He acknowledged that decisions about even the most basic practices, like how to screen hospital visitors, are left to each facility. "The practices are probably variable,'' Dr. Chu said. But he added that there is a reason to decentralize decisions about security procedures. "Each facility has local relationships with the N.Y.P.D. and local relations with the community that they have to pay attention to,'' he said.
Some of the hospital security officers are less certain of that. At a press conference at Bellevue yesterday, officials of Teamsters Local 237, the union representing hospital security officers, called for the hiring of more officers and better training.
Four years ago, the Giuliani administration sought to replace the hospital police force with private security guards, a move it claimed would save the Health and Hospitals Corporation $10 million annually. The plan was dropped in 2001 after stiff opposition from the union and the City Council.
The hospital officers have previously pushed legislators in Albany for the right to carry weapons, a measure that is opposed by the hospital administration.
More basic reforms of the hospital police system have also been rejected. Having its own security force is not unique to the city hospital system; the Department of Education also employs a dedicated force of school safety officers.
But since 1999, the school officers have been part of the New York Police Department. Unlike the school officers, hospital safety officers are hired individually by each institution, and there is no coordination among them in the deployment or oversight of the officers.
Since the recent incidents at Bellevue, the Police Department has begun "a very, very labor-intensive job'' assessing Bellevue's security efforts, said Raymond W. Kelly, the police commissioner. Some preliminary recommendations have already been made, including improving the deployment of guards, ensuring that construction workers are properly identified and employing measures as simple as making sure that locks work.
The department will also conduct preliminary reviews at all of the other city hospitals to determine if more comprehensive assessments are needed. However, Dr. Chu said he doubted that all of them needed the top-to-bottom review being undertaken by Bellevue.
Saturday, May 15, 2004
Cheap Background Checks often Miss Offenders
Employers worried about crime, terrorism and liability are embracing a new breed of online services for screening job candidates, but these low-budget background checks don't always check out. The cheapest ones routinely fail to identify criminals, performing such superficial reviews that serious offenders can get perfectly clean reports, critics say. Click to read article
Employers worried about crime, terrorism and liability are embracing a new breed of online services for screening job candidates, but these low-budget background checks don't always check out. The cheapest ones routinely fail to identify criminals, performing such superficial reviews that serious offenders can get perfectly clean reports, critics say. Click to read article
Monday, March 08, 2004
Background Checks Overview
California Association for Health Services at Home
CAHSAH Bulletin, April 2003, vol. 19 Number 4
Background checks have emerged as a major issue for providers of care in people’s homes. Whether you are a licensed and/or certified home health agency, a home care aide organization, or a consumer who is looking to hire a caretaker directly, you should know the basic components regarding background checks: what is a background check; the public and private background check systems; who is eligible and who is required to get a background check; and the different processes for fingerprint checks when your employee goes into a facility, such as a Residential Care Facility for the Elderly (RCFE).
What is a background check?
Typically, a background check is a view into the person’s past including criminal background, civil, social security, and employment history. This can be done using fingerprints to check for criminal records matches in state and federal databases or by accessing public records. The idea behind a background check is that an employer can limit risks when hiring a new employee. This risk is called negligent hiring liability. According to Workforce Magazine, “Employers can minimize their exposure to claims by conducting thorough reference checks and background investigations of job applicants.”
An employer can be held liable if they didn’t do a background check and/or hired an employee that the employer should have known was incompetent or unfit. According to the US Chamber of Commerce website, “(Employers) have a duty to make a reasonable investigation of an applicant’s fitness before hiring.” Courts have ruled, “An employer has a general duty to check criminal records for employees who will interface with the public, or who could have a foreseeable opportunity to commit a violent crime against someone in the course of their employment.” According to Barry Nadell, President, InfoLink Screening Services, “plaintiffs suing companies for negligent hiring win about 60 percent of the time, and the average verdict in losing a case was $870,390.” In 1999, Trusted Health Resources was ordered to pay $26.5 million dollars to the family of a patient murdered by a home care aide who was hired and never underwent a criminal background check by the employer. “You need to determine before the person is hired if they are fit to be hired for the job you are asking them to do,” said Nadell.
Home Care Background Checks – Permissive or Mandatory?
It is important to know how care organizations are licensed in California and the licensure and certification requirements for employees of these organizations.
Organizations that provide skilled nursing services (i.e. services of a registered nurse or licensed vocational nurse) are required to be licensed as home health agencies in California. The employees at home health agencies who provide the services in the home are required by state law to have background checks as a condition of their licensure and certification. For example, Registered Nurses, Licensed Vocational Nurses, and Certified Home Health Aides are required to have background checks as a part of their licensure or certification. Each of the bodies that regulate these licensed and certified employees is notified of subsequent arrests. It is the duty of the employer to ascertain the nurse or aide’s authority to practice. Please see Figure 2 for the phone numbers and websites to verify licensure of these employees.
Organizations that do not provide skilled nursing services, such as home care aide organizations, are not required to be licensed. Employees of these organizations are not required to undergo criminal background checks. Nevertheless, in order to protect the organization from negligent hiring liability and to protect the consumer of home care aide organization services, it is advisable to perform background checks on employees that will have direct client care responsibilities. See Figure 3 to get a visual representation of the current state law for background checks by type of service provided.
Why Background Checks are Important
Performing background checks is important because a significant number of persons applying for jobs in the home care industry have criminal or other backgrounds which make them inappropriate for this type of work. InfoLink Screening Services, a firm that performs background checks for CAHSAH members, reports the following hit ratios for checks performed for CAHSAH members from January 2002 to the present (Hit ratio is the percentage of those searches performed where negative information was reported): Motor Vehicle Record: 38.2%; Employment Credit Report: 31.8%; Reference Verification: 17.3%; Criminal Convictions: 8.04%; and Social Security Trace: 2%.
Systems/Methodologies to Getting a Background Check
There are two main ways to get a background check – public and private. The public system is the system provided by the State of California where you can check a person’s fingerprints for state and federal criminal histories using state and federal databases.
Not all employers are authorized to use the public system. All employers of persons providing personal care are eligible to use the public system to learn about selected criminal histories of their employees. The term selected is used because the state has strict dissemination criteria of what an employer can know on each employee by job type. In addition, you cannot use this system until the Department of Justice (DOJ) verifies your eligibility to use the system in a three-step process. The public system of background checks requires taking fingerprints and looking for criminal history matches by running it through state and/or federal databases using the Live Scan or ink process. The private system is the system provided by private companies not associated with the state government. These companies use public documents to conduct county and state searches, and are regulated by state and federal law. However, in the case of the private system, there are no pre-authorization requirements like there are for employers using the public system.
Use of Public System – State of California and Federal Databases
Penal Code Section 11105.3 authorizes employers who send personal care workers into people’s homes to perform criminal records checks using the state and federal databases. Specifically the code states, “A human resource agency or an employer may request from the DOJ record of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code of a person who applies for a license, employment, or volunteer position, in which he or she would have supervisory or disciplinary power over a minor or any person under his or her care.” This background check is not a requirement by state law for these employees. Rather, the law makes the background check system available to employers. CAHSAH suggests that each employer run a criminal background check on all of their home care aide employees providing care in the home. Only specified crimes are made available to the employer under this search. The information an employer will get on the applicant under Penal Code Section 11105.3 includes all convictions, attempted, or arrests pending adjudication of serious drug or violent crimes within the last ten years, and all sex crimes regardless of how long ago the crime was committed. Therefore, employers could potentially have someone working for them who had been convicted of a violent crime more than ten years ago. There is no subsequent arrest notification for Penal Code Section 11105.3, so employers are not updated should the worker commit one of these crimes after the background check is run. It is up to the employer to develop a system to periodically check for subsequent arrests.
What is Live Scan?
The State of California authorizes some employers to use the state and federal databases to conduct fingerprint background checks for their employees to get criminal record information through the Live Scan process. Live Scan is the system for the electronic submission of applicant fingerprints and an automated background check and response. Live Scan technology replaces the process of recording an individual’s fingerprint patterns manually through a rolling process using ink and a card. This technology electronically transfers images of fingerprints and personal information to the Department of Justice (DOJ) in a matter of seconds, compared to the days currently required to send fingerprint cards through the U.S. mail.
The state has specific guidelines on which criminal information will be provided to the employer. As indicated above, not all crimes committed by the person getting the background check will be available to the employer. For an additional fee, the employer can also request a check of the criminal violations in the federal database. This requires more time, because the fingerprints are sent to the FBI for checking.
The DOJ estimates that they can get results back within 72 hours when there are no convictions found. If there is a delay, the DOJ is required to send a “Notification of Delay” to the employer. This notification can mean a number of things and does not imply a conviction of one of these crimes by the employee or potential employee. By state law, the Department is required to notify the employer as soon as possible or within 30 calendar days of receiving the fingerprints.
If no criminal record information has been recorded, the DOJ is required to provide the employer with a statement of that fact. Any employer may deny employment to any person who is the subject of this report when the report indicates that the person has or has not committed any of the crimes.
There are three steps to using the public system. First, all employers must be authorized by DOJ to get criminal information as authorized by Penal Code 11105.3. There is a form to fill out for this authorization process. Secondly, an employer must also be authorized by DOJ to use the Live Scan process. In addition, during this process, employers request how they want to be notified of the results (i.e. mail, fax, or e-mail) and determine if they want to set up an automatic billing system. There is also a form to fill out for this process. The last step includes accessing the Live Scan locations across California. Each location has different fingerprint rolling requirements, locations, times, requirements for appointments, and payment types. See Figure 4 for the full details. It takes roughly six weeks from start to finish to start using the Live Scan system. This includes two weeks to be authorized by the DOJ and up to four weeks to be approved for the
Live Scan
Use of Private System – Using Background Screening Organizations
In addition to the state/federal check available to home care providers, employers can use the private system to get background check information. The private system is the non-governmental system that is provided by private companies.
These private agencies are called Consumer Reporting Agencies (CRA), and they can provide background check information in addition to the DOJ check or can provide you will all of your information for background checks to supplement or supplant the fingerprinting process through DOJ. Many times, while an employer waits for the DOJ report to return, other checks can be completed by the private process including: social security number trace, criminal background search, motor vehicle information, prior employee tracking, etc. To see a list of recommended background checks for home care aides, go to Figure 1.
Often using a Consumer Reporting Agency is faster and provides more information than the government process. Issues that surface from a DMV report or a credit check can save an agency time and money when applied to hiring. When using a CRA, an employer must conform to the federal Fair Credit Reporting Act, the California Consumer Credit and Investigative Reporting Agencies Act, and other laws. It is very important to do business with a firm which understands and complies with these laws. Further, a CRA provides comprehensive “Disclosure” and “Authorization” forms required under federal and state law which, when given to job applicants early on, act as deterrents. In California, these forms must have a “box” that the subject may check should they desire a copy of their report and additional language not normally required in other states. Often, by performing “hand” searches at the local court, serious misdemeanors or felonies are identified within only one to three days with some fees under $20.00. Sometimes county searches can be more conclusive than the DOJ search because the DOJ search relies on the county submitting all of their data to the DOJ. Although a quick search of the local court for criminal convictions is not as comprehensive as a fingerprint check, the “hit” ratios reveal that a substantial number of crimes are perpetrated in the county of residence of the subject. Unfortunately, California limits the reporting of convictions to seven years (ten in fingerprinting) and if an employer is considering using the information and not hiring, the laws impose certain guidelines for adverse action which allow the subject to dispute the information within the report.
Providing Personal Care in Facilities Licensed by Department of Social Services
Any person who works in any facility licensed by the California Department of Social Services (DSS), Licensing Community Service Division (LCSD) must submit fingerprints to the DOJ and the Federal Bureau of Investigation (FBI) for the purpose of conducting a criminal background search, unless they are exempted or are certified or licensed health professionals. For example, employees who are already licensed and certified, like LVNs, RNs, or CHHAs are not required to have an additional background check in a DSS facility. If the DSS finds that an individual has been convicted of a crime other than a minor traffic violation, the individual cannot work or be present in any community care facility unless they request a criminal record exemption from the Community Care Licensing Division, Caregiver Background Check Bureau (CBCB). Simply defined, an exemption is a Department authorized written document that “exempts” the individual from the requirement of having a criminal record clearance. In some circumstances, the individual will be permitted to work in the facility while the exemption is being evaluated.
DSS licenses childcare, childrens residential facilities, adult and elderly facilities, and special facilities. Home care organizations send their employees into the adult and elderly facilities which include Adult Day Care Facilities, Adult Day Support Centers, Adult Residential Facilities (ARF), Residential Care Facilities for the Chronically Ill, Residential Care Facilities for the Elderly (RCFE), Continuing Care Retirement Communities (CCRC), and Social Rehabilitation Facilities. A list of facilities licensed by DSS can be found at: http://ccld.ca.gov/docs/factypes/facility_types.htm.
A September 2002 memo from Community Care Licensing Division Deputy Director, Martha Lopez, indicates, “An increasing number of residents in RCFEs have private paid personal assistants provided by home care aide organizations. The services of a private paid personal assistant do not relieve the RCFE of the responsibility for all regulatory and statutory requirements. The facility must provide basic services including assistance with daily living. The RCFE cannot delegate these services.”
“Private paid personal assistants who are not certified health professionals, must have a criminal record clearance or exemption granted by community care licensing and associated to the facility. The following individuals are exempt from this requirement: a private paid personal assistant who is a licensed or certified medical professional and/or a private paid personal assistant who is currently certified as a Nursing Assistant or Home Health Aide provided he or she is not retained, employed or contracted by the RCFE and has been certified or re-certified on or after July 1, 1998. The RCFE must maintain a copy of their current certification on file. The licensee should also establish procedures to ensure that the private paid personal assistant is aware of incidents that must be reported to the licensee and the licensing agency.”
As indicated above, unlike employees providing personal care in the home, all home care aides working in a DSS facilities are required by state law to have a fingerprint check by DOJ and FBI. In addition, the background check used for employees who go into DSS facilities is more extensive than what is authorized by DOJ under Penal Code Section 11105.3. Therefore, home care employers sending home care aides into DSS facilities who have already run a background check on their employees using Penal Code 11105.3 will be required to complete an additional background check according to the DSS standards. The background check criteria used for DSS employees provide more criminal information and include any misdemeanor or felony committed by the worker. To see how background checks by DSS and home settings compare, visit http://www.cahsah.org/HRandlabor/backgroundchecks/compare.asp.
Only One Background Check Required in DSS System
Once your employee gets a background check to work in a DSS, CCLD facility, you are not required to get another background check. One background check in CCLD is “good for life.” For example, if you were to send them into a different facility licensed under DSS (e.g. from an RCFE to an ARF) or into a similar facility (e.g. from one RCFE to another RCFE), the facilities would not require you to go through another background check. This is because they have a “subsequent arrest” notification in place and any facility licensed under DSS would be notified if they should have an arrest making them ineligible for employment under DSS criteria. What is required is that you transfer the background check from one facility to another by filling out the “Fingerprint Transfer Request Form.” By doing this – to use DSS lexicon – an employee is associated with an additional facility. Therefore, if an employee works in more than one facility, you will want to associate them with an additional facility.
For more information on the recommended process for background check requirements when sending employees into a facility licensed by DSS CCLD process, visit http://ccld.ca.gov/docs/fingerprintserv/fingerprint_info.htm. The fingerprint locations are found at http://ccld.ca.gov/docs/fingerprintserv/live_scan_locations.htm. Live Scan fees for DSS are set by type of facility and the fee breakdown is located http://ccld.ca.gov/docs/fingerprintserv/live_scan_fees.pdf or call (800) 315-4507 to schedule an appointment at a Community Care Licensing Regional Office nearest you. The cost of the Live Scan fee at an RCFE is $82, which includes $42 for the state fee, $24 for the FBI fee, and $16 for the Live Scan fingerprinting fee. The RCFE will receive a letter that the staff person who is working there is cleared. The RCFE is ultimately held responsible for having the private paid personal assistants cleared.
Conclusion
Those employees who are certified and licensed are required by their certification or licensure to have background check. Employers should verify the current status by calling the license verification phone numbers of each of the boards upon initial licensure and renewal. Each of the boards is required to notify employers of subsequent arrests subsequent to the initial background check.
Non-licensed personnel that are hired by home care aide organizations are not required to have background checks by state law. Because of negligent hiring liability, employers are strongly advised to perform criminal background checks using either the public or private system. CAHSAH recommends, at a minimum, that employers get a criminal background check using the state and federal criminal databases. In addition, it is recommended that employers consider a series of other background checks recommended for home care employees – social security, criminal background check by county, and credit history.
People working in DSS facilities, such as Residential Care Facilities for the Elderly and Adult Residential Facilities, are required to submit fingerprints to the DOJ and FBI unless they are already licensed and certified employees or are exempted by DSS. Employees who are already licensed, such as LVNs, RNs, and CHHAs, are not required to have additional background checks. However, home care aides, who have been fingerprinted by home care aide employers authorized through Penal Code Section 1105.3, will be required to have an additional fingerprint check according to the more stringent standards required by DSS.
For more information and future information on background checks, visit www.cahsah.org/HRandlabor/backgroundchecks/bgcmain.asp.
California Association for Health Services at Home
CAHSAH Bulletin, April 2003, vol. 19 Number 4
Background checks have emerged as a major issue for providers of care in people’s homes. Whether you are a licensed and/or certified home health agency, a home care aide organization, or a consumer who is looking to hire a caretaker directly, you should know the basic components regarding background checks: what is a background check; the public and private background check systems; who is eligible and who is required to get a background check; and the different processes for fingerprint checks when your employee goes into a facility, such as a Residential Care Facility for the Elderly (RCFE).
What is a background check?
Typically, a background check is a view into the person’s past including criminal background, civil, social security, and employment history. This can be done using fingerprints to check for criminal records matches in state and federal databases or by accessing public records. The idea behind a background check is that an employer can limit risks when hiring a new employee. This risk is called negligent hiring liability. According to Workforce Magazine, “Employers can minimize their exposure to claims by conducting thorough reference checks and background investigations of job applicants.”
An employer can be held liable if they didn’t do a background check and/or hired an employee that the employer should have known was incompetent or unfit. According to the US Chamber of Commerce website, “(Employers) have a duty to make a reasonable investigation of an applicant’s fitness before hiring.” Courts have ruled, “An employer has a general duty to check criminal records for employees who will interface with the public, or who could have a foreseeable opportunity to commit a violent crime against someone in the course of their employment.” According to Barry Nadell, President, InfoLink Screening Services, “plaintiffs suing companies for negligent hiring win about 60 percent of the time, and the average verdict in losing a case was $870,390.” In 1999, Trusted Health Resources was ordered to pay $26.5 million dollars to the family of a patient murdered by a home care aide who was hired and never underwent a criminal background check by the employer. “You need to determine before the person is hired if they are fit to be hired for the job you are asking them to do,” said Nadell.
Home Care Background Checks – Permissive or Mandatory?
It is important to know how care organizations are licensed in California and the licensure and certification requirements for employees of these organizations.
Organizations that provide skilled nursing services (i.e. services of a registered nurse or licensed vocational nurse) are required to be licensed as home health agencies in California. The employees at home health agencies who provide the services in the home are required by state law to have background checks as a condition of their licensure and certification. For example, Registered Nurses, Licensed Vocational Nurses, and Certified Home Health Aides are required to have background checks as a part of their licensure or certification. Each of the bodies that regulate these licensed and certified employees is notified of subsequent arrests. It is the duty of the employer to ascertain the nurse or aide’s authority to practice. Please see Figure 2 for the phone numbers and websites to verify licensure of these employees.
Organizations that do not provide skilled nursing services, such as home care aide organizations, are not required to be licensed. Employees of these organizations are not required to undergo criminal background checks. Nevertheless, in order to protect the organization from negligent hiring liability and to protect the consumer of home care aide organization services, it is advisable to perform background checks on employees that will have direct client care responsibilities. See Figure 3 to get a visual representation of the current state law for background checks by type of service provided.
Why Background Checks are Important
Performing background checks is important because a significant number of persons applying for jobs in the home care industry have criminal or other backgrounds which make them inappropriate for this type of work. InfoLink Screening Services, a firm that performs background checks for CAHSAH members, reports the following hit ratios for checks performed for CAHSAH members from January 2002 to the present (Hit ratio is the percentage of those searches performed where negative information was reported): Motor Vehicle Record: 38.2%; Employment Credit Report: 31.8%; Reference Verification: 17.3%; Criminal Convictions: 8.04%; and Social Security Trace: 2%.
Systems/Methodologies to Getting a Background Check
There are two main ways to get a background check – public and private. The public system is the system provided by the State of California where you can check a person’s fingerprints for state and federal criminal histories using state and federal databases.
Not all employers are authorized to use the public system. All employers of persons providing personal care are eligible to use the public system to learn about selected criminal histories of their employees. The term selected is used because the state has strict dissemination criteria of what an employer can know on each employee by job type. In addition, you cannot use this system until the Department of Justice (DOJ) verifies your eligibility to use the system in a three-step process. The public system of background checks requires taking fingerprints and looking for criminal history matches by running it through state and/or federal databases using the Live Scan or ink process. The private system is the system provided by private companies not associated with the state government. These companies use public documents to conduct county and state searches, and are regulated by state and federal law. However, in the case of the private system, there are no pre-authorization requirements like there are for employers using the public system.
Use of Public System – State of California and Federal Databases
Penal Code Section 11105.3 authorizes employers who send personal care workers into people’s homes to perform criminal records checks using the state and federal databases. Specifically the code states, “A human resource agency or an employer may request from the DOJ record of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code of a person who applies for a license, employment, or volunteer position, in which he or she would have supervisory or disciplinary power over a minor or any person under his or her care.” This background check is not a requirement by state law for these employees. Rather, the law makes the background check system available to employers. CAHSAH suggests that each employer run a criminal background check on all of their home care aide employees providing care in the home. Only specified crimes are made available to the employer under this search. The information an employer will get on the applicant under Penal Code Section 11105.3 includes all convictions, attempted, or arrests pending adjudication of serious drug or violent crimes within the last ten years, and all sex crimes regardless of how long ago the crime was committed. Therefore, employers could potentially have someone working for them who had been convicted of a violent crime more than ten years ago. There is no subsequent arrest notification for Penal Code Section 11105.3, so employers are not updated should the worker commit one of these crimes after the background check is run. It is up to the employer to develop a system to periodically check for subsequent arrests.
What is Live Scan?
The State of California authorizes some employers to use the state and federal databases to conduct fingerprint background checks for their employees to get criminal record information through the Live Scan process. Live Scan is the system for the electronic submission of applicant fingerprints and an automated background check and response. Live Scan technology replaces the process of recording an individual’s fingerprint patterns manually through a rolling process using ink and a card. This technology electronically transfers images of fingerprints and personal information to the Department of Justice (DOJ) in a matter of seconds, compared to the days currently required to send fingerprint cards through the U.S. mail.
The state has specific guidelines on which criminal information will be provided to the employer. As indicated above, not all crimes committed by the person getting the background check will be available to the employer. For an additional fee, the employer can also request a check of the criminal violations in the federal database. This requires more time, because the fingerprints are sent to the FBI for checking.
The DOJ estimates that they can get results back within 72 hours when there are no convictions found. If there is a delay, the DOJ is required to send a “Notification of Delay” to the employer. This notification can mean a number of things and does not imply a conviction of one of these crimes by the employee or potential employee. By state law, the Department is required to notify the employer as soon as possible or within 30 calendar days of receiving the fingerprints.
If no criminal record information has been recorded, the DOJ is required to provide the employer with a statement of that fact. Any employer may deny employment to any person who is the subject of this report when the report indicates that the person has or has not committed any of the crimes.
There are three steps to using the public system. First, all employers must be authorized by DOJ to get criminal information as authorized by Penal Code 11105.3. There is a form to fill out for this authorization process. Secondly, an employer must also be authorized by DOJ to use the Live Scan process. In addition, during this process, employers request how they want to be notified of the results (i.e. mail, fax, or e-mail) and determine if they want to set up an automatic billing system. There is also a form to fill out for this process. The last step includes accessing the Live Scan locations across California. Each location has different fingerprint rolling requirements, locations, times, requirements for appointments, and payment types. See Figure 4 for the full details. It takes roughly six weeks from start to finish to start using the Live Scan system. This includes two weeks to be authorized by the DOJ and up to four weeks to be approved for the
Live Scan
Use of Private System – Using Background Screening Organizations
In addition to the state/federal check available to home care providers, employers can use the private system to get background check information. The private system is the non-governmental system that is provided by private companies.
These private agencies are called Consumer Reporting Agencies (CRA), and they can provide background check information in addition to the DOJ check or can provide you will all of your information for background checks to supplement or supplant the fingerprinting process through DOJ. Many times, while an employer waits for the DOJ report to return, other checks can be completed by the private process including: social security number trace, criminal background search, motor vehicle information, prior employee tracking, etc. To see a list of recommended background checks for home care aides, go to Figure 1.
Often using a Consumer Reporting Agency is faster and provides more information than the government process. Issues that surface from a DMV report or a credit check can save an agency time and money when applied to hiring. When using a CRA, an employer must conform to the federal Fair Credit Reporting Act, the California Consumer Credit and Investigative Reporting Agencies Act, and other laws. It is very important to do business with a firm which understands and complies with these laws. Further, a CRA provides comprehensive “Disclosure” and “Authorization” forms required under federal and state law which, when given to job applicants early on, act as deterrents. In California, these forms must have a “box” that the subject may check should they desire a copy of their report and additional language not normally required in other states. Often, by performing “hand” searches at the local court, serious misdemeanors or felonies are identified within only one to three days with some fees under $20.00. Sometimes county searches can be more conclusive than the DOJ search because the DOJ search relies on the county submitting all of their data to the DOJ. Although a quick search of the local court for criminal convictions is not as comprehensive as a fingerprint check, the “hit” ratios reveal that a substantial number of crimes are perpetrated in the county of residence of the subject. Unfortunately, California limits the reporting of convictions to seven years (ten in fingerprinting) and if an employer is considering using the information and not hiring, the laws impose certain guidelines for adverse action which allow the subject to dispute the information within the report.
Providing Personal Care in Facilities Licensed by Department of Social Services
Any person who works in any facility licensed by the California Department of Social Services (DSS), Licensing Community Service Division (LCSD) must submit fingerprints to the DOJ and the Federal Bureau of Investigation (FBI) for the purpose of conducting a criminal background search, unless they are exempted or are certified or licensed health professionals. For example, employees who are already licensed and certified, like LVNs, RNs, or CHHAs are not required to have an additional background check in a DSS facility. If the DSS finds that an individual has been convicted of a crime other than a minor traffic violation, the individual cannot work or be present in any community care facility unless they request a criminal record exemption from the Community Care Licensing Division, Caregiver Background Check Bureau (CBCB). Simply defined, an exemption is a Department authorized written document that “exempts” the individual from the requirement of having a criminal record clearance. In some circumstances, the individual will be permitted to work in the facility while the exemption is being evaluated.
DSS licenses childcare, childrens residential facilities, adult and elderly facilities, and special facilities. Home care organizations send their employees into the adult and elderly facilities which include Adult Day Care Facilities, Adult Day Support Centers, Adult Residential Facilities (ARF), Residential Care Facilities for the Chronically Ill, Residential Care Facilities for the Elderly (RCFE), Continuing Care Retirement Communities (CCRC), and Social Rehabilitation Facilities. A list of facilities licensed by DSS can be found at: http://ccld.ca.gov/docs/factypes/facility_types.htm.
A September 2002 memo from Community Care Licensing Division Deputy Director, Martha Lopez, indicates, “An increasing number of residents in RCFEs have private paid personal assistants provided by home care aide organizations. The services of a private paid personal assistant do not relieve the RCFE of the responsibility for all regulatory and statutory requirements. The facility must provide basic services including assistance with daily living. The RCFE cannot delegate these services.”
“Private paid personal assistants who are not certified health professionals, must have a criminal record clearance or exemption granted by community care licensing and associated to the facility. The following individuals are exempt from this requirement: a private paid personal assistant who is a licensed or certified medical professional and/or a private paid personal assistant who is currently certified as a Nursing Assistant or Home Health Aide provided he or she is not retained, employed or contracted by the RCFE and has been certified or re-certified on or after July 1, 1998. The RCFE must maintain a copy of their current certification on file. The licensee should also establish procedures to ensure that the private paid personal assistant is aware of incidents that must be reported to the licensee and the licensing agency.”
As indicated above, unlike employees providing personal care in the home, all home care aides working in a DSS facilities are required by state law to have a fingerprint check by DOJ and FBI. In addition, the background check used for employees who go into DSS facilities is more extensive than what is authorized by DOJ under Penal Code Section 11105.3. Therefore, home care employers sending home care aides into DSS facilities who have already run a background check on their employees using Penal Code 11105.3 will be required to complete an additional background check according to the DSS standards. The background check criteria used for DSS employees provide more criminal information and include any misdemeanor or felony committed by the worker. To see how background checks by DSS and home settings compare, visit http://www.cahsah.org/HRandlabor/backgroundchecks/compare.asp.
Only One Background Check Required in DSS System
Once your employee gets a background check to work in a DSS, CCLD facility, you are not required to get another background check. One background check in CCLD is “good for life.” For example, if you were to send them into a different facility licensed under DSS (e.g. from an RCFE to an ARF) or into a similar facility (e.g. from one RCFE to another RCFE), the facilities would not require you to go through another background check. This is because they have a “subsequent arrest” notification in place and any facility licensed under DSS would be notified if they should have an arrest making them ineligible for employment under DSS criteria. What is required is that you transfer the background check from one facility to another by filling out the “Fingerprint Transfer Request Form.” By doing this – to use DSS lexicon – an employee is associated with an additional facility. Therefore, if an employee works in more than one facility, you will want to associate them with an additional facility.
For more information on the recommended process for background check requirements when sending employees into a facility licensed by DSS CCLD process, visit http://ccld.ca.gov/docs/fingerprintserv/fingerprint_info.htm. The fingerprint locations are found at http://ccld.ca.gov/docs/fingerprintserv/live_scan_locations.htm. Live Scan fees for DSS are set by type of facility and the fee breakdown is located http://ccld.ca.gov/docs/fingerprintserv/live_scan_fees.pdf or call (800) 315-4507 to schedule an appointment at a Community Care Licensing Regional Office nearest you. The cost of the Live Scan fee at an RCFE is $82, which includes $42 for the state fee, $24 for the FBI fee, and $16 for the Live Scan fingerprinting fee. The RCFE will receive a letter that the staff person who is working there is cleared. The RCFE is ultimately held responsible for having the private paid personal assistants cleared.
Conclusion
Those employees who are certified and licensed are required by their certification or licensure to have background check. Employers should verify the current status by calling the license verification phone numbers of each of the boards upon initial licensure and renewal. Each of the boards is required to notify employers of subsequent arrests subsequent to the initial background check.
Non-licensed personnel that are hired by home care aide organizations are not required to have background checks by state law. Because of negligent hiring liability, employers are strongly advised to perform criminal background checks using either the public or private system. CAHSAH recommends, at a minimum, that employers get a criminal background check using the state and federal criminal databases. In addition, it is recommended that employers consider a series of other background checks recommended for home care employees – social security, criminal background check by county, and credit history.
People working in DSS facilities, such as Residential Care Facilities for the Elderly and Adult Residential Facilities, are required to submit fingerprints to the DOJ and FBI unless they are already licensed and certified employees or are exempted by DSS. Employees who are already licensed, such as LVNs, RNs, and CHHAs, are not required to have additional background checks. However, home care aides, who have been fingerprinted by home care aide employers authorized through Penal Code Section 1105.3, will be required to have an additional fingerprint check according to the more stringent standards required by DSS.
For more information and future information on background checks, visit www.cahsah.org/HRandlabor/backgroundchecks/bgcmain.asp.
Wednesday, February 04, 2004
Employee screening today: The information is there, but be careful how you use it
Journal of Healthcare Protection Management, Vol. 18, No. 2, Summer 2002
By Alan Appelbaum
Doing a good job of conducting thorough reference checks and background investigations of job applicants has become increasingly important in healthcare in preventing personnel-related crime and the legal consequences of negligence in hiring people who commit such crimes. However, there are many obstacles to obtaining information on applicants. In this report, we'll explore in depth the current state of background checking as described by an official of a company which provides background checking services, as well as the latest in legal practices from a leading attorney in the field.
Reference checks and calls to former employers barely scratch the surface when it comes to digging for information about a candidate, according to Chuck Rice, senior attorney, Kilpatrick, Stockton, LLP, Atlanta, GA. "A lot of employers, just to protect themselves from any potential claim of defamation or slander by the former employee, will only give out a verification that the person did work for them, the dates of employment, and the job title held. But the law does not exclude former employers from giving more information about an individual. They're free to tell the prospective employer the type of person the employee was, although many choose to provide only neutral information."
YOU DON'T ALWAYS GET THE WHOLE TRUTH
Rice suggests using a third-party provider to avoid some of the pitfalls associated with in house investigations. "Many states have statutes that protect employers from liability surrounding the release of negative information he says.” This was to encourage more freedom of information passing between employers. But I don't know if it has been that successful because employers are still nervous, either because they are reluctant to change their policies, or simply don't know that the laws exist." Rice warns administrators turning to pre employment screening services for information about prospective employees about legal ramifications associated with this approach. "Under the Fair Credit Reporting Act, and a number of similar state laws, employers, before they request a criminal record or other information from a third party, must notify the applicant that they intend to acquire one of these consumer reports. In addition, they must obtain the prospective employee's written permission to do so."
THE IMPORTANCE OF EMPLOYEE PERMISSION
Barry Nadell president and CEO, InfoLink Screening Services, Inc., Chatsworth, CA, agrees that these verification documents are important and says they are often mishandled. "Many companies who contact us, who are currently using the forms of another background screening company, find that they violate federal law, state law, or both. There are sections of the Fair Credit Reporting Act that specify that the disclosure form must be solely of the disclosure. It must say that a report may be requested, and that the individual must authorize the background report.
"For example, I was just faxed a form to review, which did not have wording that would allow continuous checks to be performed. So if a person was up for promotion or transfer to another location, further checks could not be conducted legally. And, unfortunately, if the person refused to sign a new form, the company would have no recourse. They would not be able to terminate the person for not signing the disclosure form. They simply would not be able to do the background check."
An important first step is to have the hospital attorney prepare a legally viable permission form.
WHAT TO CONSIDER WHEN HIRING A NEW EMPLOYEE
According to InfoLink, the following should be considered when hiring new employees:
• Falsified employment applications. With the job market toughening, applicants tend to stretch the truth. Personnel administrators say one out of every four job seekers is falsifying resumes. Some statistics show that close to 40% of applications are falsified.
• Lawsuits. The average jury plaintiff award in employment law cases continues to be in excess of $1,000,000. It is important to note that in 1998 there were 80,625 claims filed with the EEOC. Of these, 19,578 were in California (24%), of which 4,937 were for sexual harassment. Five percent of settlements are for more than $500,000.
• Turnover. The cost of hiring, training, and then terminating one employee can be very expensive. According to a survey, turnover costs a minimum of $10,000, with 20% of respondents indicating costs exceed $20,000.
• Negligent hiring liability. A rental car company recently paid $750,000 to an employee who was raped by another employee. In 1999, Trusted Health was ordered to pay $26.5 million dollars to the family of a murdered patient. Courts throughout the U.S. declared prior to the time the employee is actually hired, the employer should have known of the employee's unfitness and is liable if they did not perform an adequate background investigation.
SOME HIRING RELATED LAWSUITS
According to InfoLink, negligent hiring litigation is also a growing problem. Damages against employers are being awarded where the employer was negligent and failed to perform a reasonable search into the employee's background prior to hiring. Courts have ruled that an employer has a general duty to check criminal records for employees who will have interface with the public, or who could have a foreseeable opportunity to commit a violent crime against someone in the course of their employment. Nadell cites a number of cases related to background checking:
• In its first background check, one employer found the applicant falsified his application and was convicted for possession of drugs.
• "We were referred to a hotel by the Los Angeles Police Department because they were finding that lock boxes, which guests put their valuables in, were being broken into at night. Consequently they gave us a list of people to check, we called them the next day, and told them a particular employee was not going to be at work that day . . . we learned he was defending himself in court on a burglary charge elsewhere."
• A guard service was found guilty for inadequately checking a guard's references when the guard helped steal from their client. The charge negligent hiring as they failed to investigate, and the employee had a criminal record. The damages paid were over $300,000.
• A hospital in a very good part of town identified, in its first month of doing background searches, four felons that they would have hired. Another firm had no idea eight felons were among its employees; and two were on trial. In purchasing a company, the labor attorney recommended a background search on all employees before the deal was closed. The search revealed eight percent of the workforce were using falsified social security numbers.
• An employee, who had previously been convicted of passing bad checks, forged signatures on sales contracts. The court judged his employer negligent and awarded $175,000.
• An appellate court awarded $4 million to a woman who was raped by an employee. His employment application indicated no criminal convictions, when in reality he had some.
• After driving for a company for only a week, an employee was involved in a traffic accident. The jury learned that the company never saw the employee's driving record which had five traffic tickets within 18 months. They awarded the injured party $550,000.
WHAT A BACKGROUND CHECKING FIRM CAN FIND OUT
InfoLink has a service to request a social security trace or credit history, whereby the applicant's social security number is automatically checked for validation prior to search. "You immediately know if the number is invalid, and if valid, the year and state it was issued in. If the number is invalid or the social security number was issued 20 years before the applicant was born, for example, you may wish to clear up the issue before proceeding with your search." Other searches include:
• Criminal background search. InfoLink performs hand searches of current records directly at the local, county, superior, and municipal court. Criminal searches are available nationwide, as well as in Canada and United States territories. Researchers access the most current up to date information available and provide a criminal conviction history from the date of disposition, parole, or release from imprisonment based on applicable state law. They recommend a criminal search of all counties of residence and AKA's that are identified in a social security trace or credit history.
• Motor vehicle information. "While some companies believe motor vehicle information should be used only if an applicant will be driving a company car, we believe the information exposes important character issues. In addition, crimes are not isolated to where a person lives or works. By searching an applicant's motor vehicle information, we learn about suspended licenses, driving under the influence, possession of drugs, failures to appear in court, and arrest warrants."
• Prior employee tracking. A free search of InfoLink inquiries by other clients is available to identify past employers that may have been intentionally left off of applicants' employment applications.
• Employment verification. "Dates of employment, position titles, and degrees earned are the most frequent things we see applicants lie about. InfoLink standard Employment Verification reports the employer's name and confirms the applicant's title, dates of employment, whether they're eligible for rehire, and asks for additional comments. Upon request, the company will also ask for the person's salary history. InfoLink also offers an Employment Verification "Plus" package that, in addition to the questions above, asks the interviewee to rate their past employee on the following attributes on a scale of one to five: 1) initiative and drive, 2) follow through, 3) analytical ability, 4) organization skills, 5) adaptability to changes or breaks in routine, and 6) work ethic.
• Employment/personal reference interview. The company offers three types of reference interviews: professional, management, and executive. The professional interview reference includes questions that bear on applicant's professionalism, work ethic, and adaptability. The management interview includes the entire professional interview plus questions that focus on applicant's management capabilities. The executive interview includes the management interview, adds questions that focus on applicant's executive management skills and capabilities, and also allows clients to add three of their own questions to customize the interview for the position or industry.
• Education verification. This reports the applicant's dates of attendance, graduation date, and degree earned. Some educational institutions will also report GPA.
• Credit Information (PEER Report). This information includes name, current address with two previous addresses, social security number, phone, current employer, up to three previous employers, and aliases. A complete credit summary file also includes public records (i.e., liens, judgments, etc.), collection accounts, current or previous delinquent accounts, types of credit, and total indebtedness. It also displays a profile (i.e., account charged off, repossessed, etc.), and alerts any confirmed or suspected fraud activity. This credit report is designed for employment purposes, so it does not place an inquiry on an applicant's report.
• Released inmate search. This is a statewide search of all prison records, updated 48 hours after paroled. It reveals if subject served time in state prison for a felony conviction, provides his/her release date, and sometimes a picture ID, as well as current warrant information for parole violations.
• Sexual offender/child molester registry search. This searches databases of registered sex offenders per Megan's Law. In California, for example, there are 67,000 registered sex offenders, including 37,500 registered child molesters.
• Worker's compensation history. This is a search available in most states that identifies worker's compensation claims against applicant's past employers. The history will report the last five events and include case numbers, locations, case status, dates of injury, body parts injured, type of injury, and all party information including lien claimants. When applicants have filed worker's compensation claims at past employers, they often intentionally leave them off their employment applications.
• Criminal Federal District Court search. This is done by district for federal convictions which provides criminal history for the date of disposition, parole, or release from imprisonment.
• State repository criminal search. This looks for criminal convictions; however, records are not considered accurate or up to date and should not replace county searches. If a "hit" occurs, InfoLink. requires a search of county records.
• Civil search County Superior Court. It searches by plaintiff, defendant, attorney, or case number of Superior Court filings of $25,000 or greater. "We can also search civil municipal court records, but do not recommend the search for cases less than $25,000."
• Liens and judgments, which shows notices of default, county and state tax liens, and unlawful detainers.
• Professional license verifications, which ensure the validity and current status of a professional license.
• Military service verification, which shows the candidate's branch of service and current status.
• Medicare/Medicaid fraud report through the Office of the Inspector general, which searches health facilities in the National Practitioner Data Bank, cumulative sanction reports, and reveals debarred contractors from the General Services Administration.
• Prior employer drug/alcohol test results. "We check with past employers to obtain information as to whether applicant 1) took a drug test, 2) failed any drug test, or 3) refused any drug test." Pursuant to 49 C.F.R., previous employers must provide information on past employees' drug and alcohol tests within the two previous years. Information will provide dates of confirmed positive tests for drugs, confirmed alcohol test results of 0.04% or greater, and refusal to take a controlled substance test within the past two years.
SEARCH COSTS AND DELIVERY
Searches like criminal history, motor vehicle report, and social security verification as a package are $24.80 plus court and DMV fees, and volume discounts are available, the company says. Additional searches are from $3.00 to $32.50 depending on the search required. Information is provided normally within 24 to 72 hours except for some out of town courts or educational institutions.
Using the Internet and a password, clients may request background searches, view reports in progress, view completed reports, print reports anytime, or store reports on the company's secure server for later instant retrieval; all with no software required. Using the "work in progress" section, clients always know the status of a report and can use any portion of a report to make a hiring decision. You receive an e-mail upon the completion of the background screening report or the receipt of the results of a drug test. For on-line clients, some reports are completed within one hour of their request.
Subscribers can experience savings due to the reduction in workload associated with applicant interviewing and reference checking. They say applicant's knowledge that a criminal, social security, and motor vehicle investigation will be performed acts as a deterrent even at the application stage, thus, human resources professionals save time and money by not having to interview applicants who don't complete the application process.
WATCH OUT FOR: STORED DATA
InfoLink does not use online or CD ROM databases, which may be out-of-date and inaccurate. The Federal Trade Commission, in a staff opinion letter, wrote "an employment screening service that uses 'stored data' [which may be as much as 90 days old] does not comply with the Fair Credit Reporting Act Section 613(2)." Therefore, if a court is backed up, causing a delay in acquiring a final report the company can use a state registry (if available) to provide partial information while waiting for the county criminal court record.
"We go to the courts, with lists of names, twice a day," says Nadell. "Turnaround time is critical for our clients. Some people think you can get this information from a database or the Internet, but that information is not accurate. You have to physically go to the courts and pull these records, and that is what we do ... all over the country. In fact, there have been many lawsuits for providing inaccurate information. If I tell a client a particular candidate was convicted of a crime, and they have actually had that [conviction] expunged or the case dismissed, that is a lawsuit waiting to happen."
ALSO WATCH OUT FOR: CRIMINAL OR CREDIT 'DISCRIMINATION'
Employers in some states need to pay attention to their unique situations. "Finding that someone has a criminal record is not necessarily a reason for disqualifying them from employment," says Rice. "The criminal record information has to relate to the job if you are going to disqualify someone on the basis of it. In some states, there are even statutes that say an employer may not consider some types of criminal convictions at all. This is because there is a higher proportion of minorities who get convicted of crimes than non minorities, and you can end up with a race or national origin discrimination claim. In California, for example, you cannot even ask about certain criminal convictions, such as marijuana offenses. Therefore, if you ask a third party to gather information from California, you need to tell them you do no want any information about these statutes."
Another problem to avoid is inappropriately acquiring credit information about a candidate, adds Nadell. "Credit reports should only be accessed if the [candidate] can affect you financially."
Journal of Healthcare Protection Management, Vol. 18, No. 2, Summer 2002
By Alan Appelbaum
Doing a good job of conducting thorough reference checks and background investigations of job applicants has become increasingly important in healthcare in preventing personnel-related crime and the legal consequences of negligence in hiring people who commit such crimes. However, there are many obstacles to obtaining information on applicants. In this report, we'll explore in depth the current state of background checking as described by an official of a company which provides background checking services, as well as the latest in legal practices from a leading attorney in the field.
Reference checks and calls to former employers barely scratch the surface when it comes to digging for information about a candidate, according to Chuck Rice, senior attorney, Kilpatrick, Stockton, LLP, Atlanta, GA. "A lot of employers, just to protect themselves from any potential claim of defamation or slander by the former employee, will only give out a verification that the person did work for them, the dates of employment, and the job title held. But the law does not exclude former employers from giving more information about an individual. They're free to tell the prospective employer the type of person the employee was, although many choose to provide only neutral information."
YOU DON'T ALWAYS GET THE WHOLE TRUTH
Rice suggests using a third-party provider to avoid some of the pitfalls associated with in house investigations. "Many states have statutes that protect employers from liability surrounding the release of negative information he says.” This was to encourage more freedom of information passing between employers. But I don't know if it has been that successful because employers are still nervous, either because they are reluctant to change their policies, or simply don't know that the laws exist." Rice warns administrators turning to pre employment screening services for information about prospective employees about legal ramifications associated with this approach. "Under the Fair Credit Reporting Act, and a number of similar state laws, employers, before they request a criminal record or other information from a third party, must notify the applicant that they intend to acquire one of these consumer reports. In addition, they must obtain the prospective employee's written permission to do so."
THE IMPORTANCE OF EMPLOYEE PERMISSION
Barry Nadell president and CEO, InfoLink Screening Services, Inc., Chatsworth, CA, agrees that these verification documents are important and says they are often mishandled. "Many companies who contact us, who are currently using the forms of another background screening company, find that they violate federal law, state law, or both. There are sections of the Fair Credit Reporting Act that specify that the disclosure form must be solely of the disclosure. It must say that a report may be requested, and that the individual must authorize the background report.
"For example, I was just faxed a form to review, which did not have wording that would allow continuous checks to be performed. So if a person was up for promotion or transfer to another location, further checks could not be conducted legally. And, unfortunately, if the person refused to sign a new form, the company would have no recourse. They would not be able to terminate the person for not signing the disclosure form. They simply would not be able to do the background check."
An important first step is to have the hospital attorney prepare a legally viable permission form.
WHAT TO CONSIDER WHEN HIRING A NEW EMPLOYEE
According to InfoLink, the following should be considered when hiring new employees:
• Falsified employment applications. With the job market toughening, applicants tend to stretch the truth. Personnel administrators say one out of every four job seekers is falsifying resumes. Some statistics show that close to 40% of applications are falsified.
• Lawsuits. The average jury plaintiff award in employment law cases continues to be in excess of $1,000,000. It is important to note that in 1998 there were 80,625 claims filed with the EEOC. Of these, 19,578 were in California (24%), of which 4,937 were for sexual harassment. Five percent of settlements are for more than $500,000.
• Turnover. The cost of hiring, training, and then terminating one employee can be very expensive. According to a survey, turnover costs a minimum of $10,000, with 20% of respondents indicating costs exceed $20,000.
• Negligent hiring liability. A rental car company recently paid $750,000 to an employee who was raped by another employee. In 1999, Trusted Health was ordered to pay $26.5 million dollars to the family of a murdered patient. Courts throughout the U.S. declared prior to the time the employee is actually hired, the employer should have known of the employee's unfitness and is liable if they did not perform an adequate background investigation.
SOME HIRING RELATED LAWSUITS
According to InfoLink, negligent hiring litigation is also a growing problem. Damages against employers are being awarded where the employer was negligent and failed to perform a reasonable search into the employee's background prior to hiring. Courts have ruled that an employer has a general duty to check criminal records for employees who will have interface with the public, or who could have a foreseeable opportunity to commit a violent crime against someone in the course of their employment. Nadell cites a number of cases related to background checking:
• In its first background check, one employer found the applicant falsified his application and was convicted for possession of drugs.
• "We were referred to a hotel by the Los Angeles Police Department because they were finding that lock boxes, which guests put their valuables in, were being broken into at night. Consequently they gave us a list of people to check, we called them the next day, and told them a particular employee was not going to be at work that day . . . we learned he was defending himself in court on a burglary charge elsewhere."
• A guard service was found guilty for inadequately checking a guard's references when the guard helped steal from their client. The charge negligent hiring as they failed to investigate, and the employee had a criminal record. The damages paid were over $300,000.
• A hospital in a very good part of town identified, in its first month of doing background searches, four felons that they would have hired. Another firm had no idea eight felons were among its employees; and two were on trial. In purchasing a company, the labor attorney recommended a background search on all employees before the deal was closed. The search revealed eight percent of the workforce were using falsified social security numbers.
• An employee, who had previously been convicted of passing bad checks, forged signatures on sales contracts. The court judged his employer negligent and awarded $175,000.
• An appellate court awarded $4 million to a woman who was raped by an employee. His employment application indicated no criminal convictions, when in reality he had some.
• After driving for a company for only a week, an employee was involved in a traffic accident. The jury learned that the company never saw the employee's driving record which had five traffic tickets within 18 months. They awarded the injured party $550,000.
WHAT A BACKGROUND CHECKING FIRM CAN FIND OUT
InfoLink has a service to request a social security trace or credit history, whereby the applicant's social security number is automatically checked for validation prior to search. "You immediately know if the number is invalid, and if valid, the year and state it was issued in. If the number is invalid or the social security number was issued 20 years before the applicant was born, for example, you may wish to clear up the issue before proceeding with your search." Other searches include:
• Criminal background search. InfoLink performs hand searches of current records directly at the local, county, superior, and municipal court. Criminal searches are available nationwide, as well as in Canada and United States territories. Researchers access the most current up to date information available and provide a criminal conviction history from the date of disposition, parole, or release from imprisonment based on applicable state law. They recommend a criminal search of all counties of residence and AKA's that are identified in a social security trace or credit history.
• Motor vehicle information. "While some companies believe motor vehicle information should be used only if an applicant will be driving a company car, we believe the information exposes important character issues. In addition, crimes are not isolated to where a person lives or works. By searching an applicant's motor vehicle information, we learn about suspended licenses, driving under the influence, possession of drugs, failures to appear in court, and arrest warrants."
• Prior employee tracking. A free search of InfoLink inquiries by other clients is available to identify past employers that may have been intentionally left off of applicants' employment applications.
• Employment verification. "Dates of employment, position titles, and degrees earned are the most frequent things we see applicants lie about. InfoLink standard Employment Verification reports the employer's name and confirms the applicant's title, dates of employment, whether they're eligible for rehire, and asks for additional comments. Upon request, the company will also ask for the person's salary history. InfoLink also offers an Employment Verification "Plus" package that, in addition to the questions above, asks the interviewee to rate their past employee on the following attributes on a scale of one to five: 1) initiative and drive, 2) follow through, 3) analytical ability, 4) organization skills, 5) adaptability to changes or breaks in routine, and 6) work ethic.
• Employment/personal reference interview. The company offers three types of reference interviews: professional, management, and executive. The professional interview reference includes questions that bear on applicant's professionalism, work ethic, and adaptability. The management interview includes the entire professional interview plus questions that focus on applicant's management capabilities. The executive interview includes the management interview, adds questions that focus on applicant's executive management skills and capabilities, and also allows clients to add three of their own questions to customize the interview for the position or industry.
• Education verification. This reports the applicant's dates of attendance, graduation date, and degree earned. Some educational institutions will also report GPA.
• Credit Information (PEER Report). This information includes name, current address with two previous addresses, social security number, phone, current employer, up to three previous employers, and aliases. A complete credit summary file also includes public records (i.e., liens, judgments, etc.), collection accounts, current or previous delinquent accounts, types of credit, and total indebtedness. It also displays a profile (i.e., account charged off, repossessed, etc.), and alerts any confirmed or suspected fraud activity. This credit report is designed for employment purposes, so it does not place an inquiry on an applicant's report.
• Released inmate search. This is a statewide search of all prison records, updated 48 hours after paroled. It reveals if subject served time in state prison for a felony conviction, provides his/her release date, and sometimes a picture ID, as well as current warrant information for parole violations.
• Sexual offender/child molester registry search. This searches databases of registered sex offenders per Megan's Law. In California, for example, there are 67,000 registered sex offenders, including 37,500 registered child molesters.
• Worker's compensation history. This is a search available in most states that identifies worker's compensation claims against applicant's past employers. The history will report the last five events and include case numbers, locations, case status, dates of injury, body parts injured, type of injury, and all party information including lien claimants. When applicants have filed worker's compensation claims at past employers, they often intentionally leave them off their employment applications.
• Criminal Federal District Court search. This is done by district for federal convictions which provides criminal history for the date of disposition, parole, or release from imprisonment.
• State repository criminal search. This looks for criminal convictions; however, records are not considered accurate or up to date and should not replace county searches. If a "hit" occurs, InfoLink. requires a search of county records.
• Civil search County Superior Court. It searches by plaintiff, defendant, attorney, or case number of Superior Court filings of $25,000 or greater. "We can also search civil municipal court records, but do not recommend the search for cases less than $25,000."
• Liens and judgments, which shows notices of default, county and state tax liens, and unlawful detainers.
• Professional license verifications, which ensure the validity and current status of a professional license.
• Military service verification, which shows the candidate's branch of service and current status.
• Medicare/Medicaid fraud report through the Office of the Inspector general, which searches health facilities in the National Practitioner Data Bank, cumulative sanction reports, and reveals debarred contractors from the General Services Administration.
• Prior employer drug/alcohol test results. "We check with past employers to obtain information as to whether applicant 1) took a drug test, 2) failed any drug test, or 3) refused any drug test." Pursuant to 49 C.F.R., previous employers must provide information on past employees' drug and alcohol tests within the two previous years. Information will provide dates of confirmed positive tests for drugs, confirmed alcohol test results of 0.04% or greater, and refusal to take a controlled substance test within the past two years.
SEARCH COSTS AND DELIVERY
Searches like criminal history, motor vehicle report, and social security verification as a package are $24.80 plus court and DMV fees, and volume discounts are available, the company says. Additional searches are from $3.00 to $32.50 depending on the search required. Information is provided normally within 24 to 72 hours except for some out of town courts or educational institutions.
Using the Internet and a password, clients may request background searches, view reports in progress, view completed reports, print reports anytime, or store reports on the company's secure server for later instant retrieval; all with no software required. Using the "work in progress" section, clients always know the status of a report and can use any portion of a report to make a hiring decision. You receive an e-mail upon the completion of the background screening report or the receipt of the results of a drug test. For on-line clients, some reports are completed within one hour of their request.
Subscribers can experience savings due to the reduction in workload associated with applicant interviewing and reference checking. They say applicant's knowledge that a criminal, social security, and motor vehicle investigation will be performed acts as a deterrent even at the application stage, thus, human resources professionals save time and money by not having to interview applicants who don't complete the application process.
WATCH OUT FOR: STORED DATA
InfoLink does not use online or CD ROM databases, which may be out-of-date and inaccurate. The Federal Trade Commission, in a staff opinion letter, wrote "an employment screening service that uses 'stored data' [which may be as much as 90 days old] does not comply with the Fair Credit Reporting Act Section 613(2)." Therefore, if a court is backed up, causing a delay in acquiring a final report the company can use a state registry (if available) to provide partial information while waiting for the county criminal court record.
"We go to the courts, with lists of names, twice a day," says Nadell. "Turnaround time is critical for our clients. Some people think you can get this information from a database or the Internet, but that information is not accurate. You have to physically go to the courts and pull these records, and that is what we do ... all over the country. In fact, there have been many lawsuits for providing inaccurate information. If I tell a client a particular candidate was convicted of a crime, and they have actually had that [conviction] expunged or the case dismissed, that is a lawsuit waiting to happen."
ALSO WATCH OUT FOR: CRIMINAL OR CREDIT 'DISCRIMINATION'
Employers in some states need to pay attention to their unique situations. "Finding that someone has a criminal record is not necessarily a reason for disqualifying them from employment," says Rice. "The criminal record information has to relate to the job if you are going to disqualify someone on the basis of it. In some states, there are even statutes that say an employer may not consider some types of criminal convictions at all. This is because there is a higher proportion of minorities who get convicted of crimes than non minorities, and you can end up with a race or national origin discrimination claim. In California, for example, you cannot even ask about certain criminal convictions, such as marijuana offenses. Therefore, if you ask a third party to gather information from California, you need to tell them you do no want any information about these statutes."
Another problem to avoid is inappropriately acquiring credit information about a candidate, adds Nadell. "Credit reports should only be accessed if the [candidate] can affect you financially."
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