In an effort to increase protection for vulnerable patient populations, the Affordable Care Act (ACA) creates incentives for states to strengthen the employment background check programs available to long-term care providers. Many states have responded to these incentives by creating or enhancing background check programs, increasing the ability of long-term care providers to screen for individuals with certain types of criminal convictions and exclude them from employment. Although these programs may help long-term care providers to protect their patients and to select a qualified workforce, employment policies based on criminal record information may be in tension with recent Equal Employment Opportunity Commission (EEOC) guidance, even when such policies are based on exclusions mandated by state law. Employers, therefore, should carefully evaluate employment policies based on criminal history for the possibility of both state law consequences and federal civil rights liability.

I. The Affordable Care Act and the National Background Check Program -

Section 6201 of the ACA directs the Department of Health and Human Services (HHS) to create a national program to “identify efficient, effective, and economical procedures for long term care facilities and providers to conduct background checks on a statewide basis for all potential direct access employees.” Based on this mandate, HHS created the National Background Check Program (NBCP), which provides grants to states to implement statewide background check programs that require FBI fingerprint checks for direct access workers in long term care facilities and include “rap back” systems to notify long-term care providers of post-background check criminal convictions. Under the NBCP, HHS has awarded more than $50 million to 24 states to develop background check programs.