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Background Checking & Section 6021

In March of 2010, President Obama signed into law HR. 3590, The Patient Protection and Affordable Care Act (PPACA). Section 6021 of this Act states that the Secretary of Health and Human services shall establish a nationwide program of criminal background checks on “prospective direct patient access employees” of long term care (LTC) facilities or providers, which will be similar to a pilot program carried out under section 307 of the Medicare Modernization Act of 2003 (MMA).

According to Section 6201, participating States will be responsible for having procedures for conducting employee background screenings in accordance with the Act.  Specific background screenings are described:

• Checks of State and Federal criminal history records are required, “including a finger print check using the Integrated Automated Fingerprint Identification System” of the FBI.

  Also mandated is “the development of a ‘rap back’ capability” by States.  Following the initial criminal background check, if an employee covered by Section 6201 is convicted of a crime and a fingerprint match is found, State law enforcement will immediately inform the State, which will in turn immediately inform the employer.

• A search is required of “State-based abuse and neglect registries and databases.”  Section 6201 specifically instructs that this must include such registries “of another State where a prospective employee previously resided in that State.”

• Also to be searched are records such as proceedings conducted by Medicaid Fraud Control Units, or by licensing and disciplinary boards, which might contain information disqualifying individuals for positions requiring direct patient access.

Participating States are responsible for monitoring compliance with Section 6201 by facilities and providers.  Each State will designate a single State agency to oversee the regulations under the Act, including such things as supervising the design of privacy safeguards, determining which positions function as “direct patient access employees” under the Act and specifying offenses for the purpose of the nationwide program.  States are charged to provide a provisional period of employment pending completion of the mandated background checks, and are also responsible for providing an independent process whereby the provisional employee or employee may appeal or dispute the findings of the background check.

The details of State responsibility for test methods “that reduce duplicative fingerprinting” are enumerated in the Section, including the previously mentioned “rap-back.”  Various other paragraphs include topics such as costs and Federal matching funds, and a list of definitions that adhere to the nationwide program.

All LTC facilities and providers will want to familiarize themselves with Section 6021.  Organizations in States have not previously participated in this program under MMA will especially want to read through the details and consult their legal and background checking professionals for advice on how to proceed when this change comes into effect.  Sterling will keep clients updated as more information becomes available.