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Automated Tracking of Provisional Employment in New Mexico

Automated Tracking of Provisional Employment in New Mexico

New Mexico's promising practice
Applicability to other States


Provisional employment (sometimes called “conditional employment”) is the period of work between a new employee’s first day (hire date) and when a final fitness determination is made about that employee’s employment eligibility. States may choose whether to allow providers/facilities to offer provisional employment, but the NBCP limits the period to 60 days. New Mexico’s automated background checking database, integrated with fingerprint and criminal history results, tracks all such time-limited actions and sends automatic notifications to affected providers and applicants when deadlines are approaching or passed. As a result, the number of provisionally employed applicants beyond 60 days has decreased from 30 percent to 2 percent.


Section 6201 of the Affordable Care Act requires participating States to, “as appropriate, provide for a provisional period of employment by a long term care facility or provider of a [direct access] employee, not to exceed 60 days, pending completion of the required criminal history background check, ... during which the employee shall be subject to direct onsite supervision [in accordance with State rules].”

The first decision a State must make is whether or not to allow provisional employment. If a State decides to allow provisional employment, it needs to consider the following elements in establishing its policies:

  • Which facility/provider types are permitted to offer provisional employment;
  • Which employee types are eligible;
  • Which steps in the fitness determination process must be completed before a facility/provider can offer an applicant provisional employment;
  • The level and nature of the required onsite supervision;
  • How long an employee may remain in provisional employment status; and
  • How to monitor employers’ compliance.

For their part, facilities/providers also must consider their own issues when deciding whether to offer provisional employment. For example, they must weigh the risks of provisional employment against staffing needs, and consider the anticipated length of time to complete background checks.

Many States that allow provisional employment have found that these employees regularly surpassed the 60-day mark. The reasons were many: Some applicants needed to travel as many as 75 miles to be fingerprinted; physical locations and hours were limited. Also, the process of sending and receiving criminal history results was slow and labor intensive; reprints, resolving missing court dispositions, etc., could extend the process by months, during which uncleared applicants would continue working in a provisional employment status, adding to the hiring provider’s burden of extended monitoring and oversight.

Most States require some pre-employment screening prior to allowing a facility/provider to extend an offer of provisional employment.

New Mexico’s promising practice

In the State of New Mexico, the Caregivers Criminal History Screening Program (CCHSP) allows for provisional employment, following successful completion of the initial registries check and while awaiting the results of the fingerprint-based background check. Applicants may also continue in provisional employment if they file for an appeal of a negative fitness determination, including additional time needed to provide missing court dispositions or be re-fingerprinted.

The New Mexico Department of Health (DOH) participated in the CMS Background Check Pilot Program in 2006–2007 and deployed the Consolidated Online Registry (COR) as a single online resource for initial eligibility screening of LTC applicants. However, because this system cannot track applicants through the life cycle of the background check, the State had no visibility of provisionally employed applicants who were still working beyond the period of provisional employment.

Under the NBCP, the DOH is acquiring an automated background checking database integrated with fingerprint and criminal history results information. Its new “CCHSP 2.0” system incorporates a standard process for all time-limited actions, including those associated with provisional employment. The CCHSP 2.0 tracks provisionally employed applicants from the time they pass the initial registries check and are given an authorization to be fingerprinted.

For example, by law, applicants have 20 calendar days to be fingerprinted. The CCHSP 2.0 is configured to track the number of days since an applicant completes the initial registries check and is given an authorization to be fingerprinted. The system will send reminders to the hiring employer and fitness determination unit staff on days 10 and 15. When day 21 is reached, the system automatically generates a letter to the applicant to notify him/her that the provisional employment must end immediately; the employer is also notified that the applicant is no longer eligible for provisional employment pending a new registries check and new authorization to be fingerprinted, among other documented actions. This notification process requires virtually no effort by DOH staff, and it immediately transmits the same information to all affected providers and applicants.

Because the CCHSP 2.0 is an automated, integrated system, it helps the DOH reduce the number of provisionally employed applicants still working after important benchmark dates are missed

Applicability to other States

A majority of States participating in the NBCP have identified as a program goal to more efficiently track applicants throughout the background check and employment life cycle. Many web-based background check systems can be tailored to meet State-specific needs, including the addition of system notification functionality similar to that in New Mexico. States can easily identify this functionality and related business practices when developing the functional software requirements for their systems. Minimally, systems need the following capabilities:

  • Ability to track applicants, including status of their background check and their employment;
  • Ability of facilities/providers to enter applicant personal demographic information into the system; and
  • Ability to track the time since provisional employment began.

Grantee States that are not developing electronic systems or tools to track LTC applicants may not be able to adapt this promising practice easily, although no currently participating State to date has indicated that it does not intend to develop some form of electronic applicant tracking. Specifically, the practice of tracking provisional employees will be difficult if:

  • Notification is slow or directed to parties other than the employing facility/provider;
  • Applicant tracking is not in place for all employees or all relevant facilities/providers; and
  • State CMS Certification and Survey staff do not have current and complete facility/provider provisional and permanent employment rosters.