Medicare Compliance & Reimbursement

Protect your HHA from discrimination claims under the new EEOC guidance.

If an employee or applicant is African American or Hispanic, the Equal Employment Opportunity Commission is taking a guilty-until-proven-innocent stance on criminal background checks. And this guidance change can expose your home health agency or hospice to serious legal trouble.

"Based on various statistics, the Guidance makes clear that EEOC will presume there is an unlawful disparate impact on black and Latino job applicants whenever an employer excludes applicants for employment on the basis of criminal convictions," says attorney John Gilliland with The Gilliland Law Firm PC. "This presumption shifts the burden to your agency or hospice to rebut that presumption."

Play Right — The Ball Is In Your Court

Do this: One way to rebut this presumption is to develop a "targeted screen" of criminal conduct, Gilliland says. When the targeted screen excludes someone from employment, it will provide an opportunity for an individualized assessment.

"The targeted screen must be job-related and consistent with business necessity," Gilliland says. You can determine this by considering:

1. The specific crime — Consider the nature and gravity of the criminal offense, Gilliland advises. Does the specific crime raise concerns about risks in the particular job, such as elder abuse or prior thefts from patients? Is the crime a misdemeanor or a more serious felony?

2. The time elapsed — Consider the length of time that has passed since the sentence completion or conviction. "The amount of time that has passed since the individual’s criminal conduct occurred is relevant to the risk he or she poses to the job in question," Gilliland notes.

3. The specific job — Consider the nature of the job, including its duties, essential functions, environment and circumstances, Gilliland says. The EEOC guidance is particularly specific on this point for home care and hospice, where there are questions about oversight and level of supervision, as well as interaction with vulnerable individuals and whether the job is performed in a private home.

Look At The Individual Situation

When you’re performing the individualized assessment, you’re essentially giving the individual an opportunity to explain her criminal history, Gilliland says. Here’s what it involves:

Notification — Notify the individual that she has been screened out due to a criminal conviction;

Opportunity to Comment — Give the individual an opportunity to demonstrate that you should not apply the exclusion due to her particular circumstances; and

Decide — Considering the information that the individual furnished, determine whether you should make an exception. You may decide to make the exception "if the exclusion is not job-related and consistent with business necessity in the particular circumstances," Gilliland notes.