Background Checks Overview

CAHSAH Bulletin, April 2003, vol. 19 Number 4

California Association for Health Services at Home

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 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.