Hire the Best

In today’s highly regulated and litigious society, healthcare providers are expected to hire the best trained, qualified and properly licensed staff.   Not just a background check, but in certain industries, a particular set of checks, including criminal, OIG exclusions and others. 

Section 6201 of the Patient Protection and Affordable Care Act (PPACA) sets the requirements to conduct background checks on a statewide basis. But to date, 6 states do not require nurses to have background checks prior to licensure:

Colorado is one of 6 states that does not conduct criminal background checks on applicants seeking licensure. But does this mean that the employer is off the hook for liability of a criminal action of an employed nurse?  

Negligent Hiring

No. There is a common law doctrine of employer liabilty called negligent hiring or negligent retention. The legal concept is that the employer has a responsibility to provide a safe work environment and place of business. For healthcare, this means that knowing a previous or current criminal record is very relevant and a fact to consider in hiring. If an individual has a certain violent criminal history, then healthcare may not be the best setting. (Rape, arson, murder drug abuse, etc…). It is imperative though that you consult with EEOC Guidance on the use of a previous or current criminal history before choosing not to hire an individual. Further, there are some very specific legal processes and procedure that must be followed involving prior written consent from the applicant, notice of a criminal action that you are going to use to not hire before informing the applicant of the reason not to hire. This is to provide them an opportunity to dispute that the record is theirs, and finally, an analysis of the relevance of the prior or current criminal record on the position and the scope and time since the conviction.

Written by Michael Rosen, ESQ
ProviderTrust Co-Founder, mrosen@providertrust.com

Michael brings over 20 years of experience founding and leading risk mitigation businesses, receiving numerous accolades such as: Inc Magazine’s Inc 500 Award and Nashville Chamber of Commerce Small Business of the Year
Connect with Michael on Linkedin 

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