Provisional employment (it may also be called “conditional employment”) is the time between a new employee’s first day of work (the employee’s hire date) and when a final fitness determination is made. The National Background Check Program (NBCP) gives States the options of not allowing provisional employment, or permitting facilities/providers to offer provisional employment during the background check process and/or the appeal process of an initial fitness determination. If States choose to allow provisional employment during the initial background check process, the period of provisional employment cannot exceed 60 days. During the provisional employment period, the employee is subject to on-site supervision in accordance with State rules. This resource document discusses what States should consider in crafting their provisional employment policies and how provisional employment works.
What are the key elements of provisional employment policies?
Which facility/provider types and employees are eligible for provisional employment?
When can employees begin provisional employment?
What supervision is required for provisional employees?
How long may an individual work under provisional employment?
The first decision a State must make is whether to allow provisional employment or prohibit facilities/providers from assigning employees to direct patient access positions until final determinations are made as to their eligibility for this type of work. 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 categories are eligible for provisional employment;
- The steps in the fitness determination process that must be completed before a facility/provider can offer an applicant provisional employment;
- The level and nature of the required on-site supervision for provisional employees; and
- The length of time an employee may remain in provisional employment status.
- How to monitor compliance.
In addition to the decisions States have to make, facilities/providers will need to consider their own issues when deciding whether to offer provisional employment. For example, they will have to weigh the risks of provisional employment against staffing needs, and consider the anticipated length of time to complete background checks.
Section 6201 of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) provides for each State to establish provisional employment “as appropriate” for the State. This provision provides States with flexibility to determine which facility/provider types and employee categories are eligible for provisional employment and are subject to the on-site supervision requirements established by the State. A State’s provisional employment policy can cover up to all facility/provider types and all direct patient access employees who are subject to background checks under the NBCP.
Most States require some pre-employment screening prior to allowing a facility/provider to extend an offer of provisional employment, but State policies vary on this issue. Some States require the facility/provider to complete a name-based registry check of State and national registries for disqualifying offenses before it can extend a provisional employment offer. Other States also require each applicant to provide a signed and notarized self-declaration of criminal offenses and other disqualifying offenses (or lack thereof) before beginning a provisional employment period. Still other States either require applicants to have completed fingerprinting prior to beginning provisional employment or to complete fingerprinting within 10 to 30 days of beginning provisional employment.
States allowing provisional employment must also develop guidelines and policies specifying the required on-site supervision for provisional employees. Generally, these guidelines and policies specify on-site supervision as ongoing, good faith, verifiable efforts by supervisors to monitor provisional employees. State policies vary with respect to the types and level of supervision required and, even within a State, there can be differences in the specified levels of supervision required across different facility/provider types. Some States require direct, on-site supervision for provisional employees in residential facilities and telephonic oversight for provisional employees working for community-based service providers. Other States do not specify in their policies the specific levels or types of supervision required.
The length of provisional employment can vary by State and is affected by the amount of time it takes a State to make an initial fitness determination. However, the Affordable Care Act specifies that provisional employment cannot exceed 60 days for applicants with pending initial fitness determinations. Provisional employment may also be offered during the appeal process. Under the Affordable Care Act, if an applicant appeals his or her fitness determination, the State or provider can allow the employee to continue working under the same provisional employment standards until the appeal is resolved. Therefore, States participating in the NBCP must consider how long they will allow provisional employment to continue while an appeal is being conducted.
- Section 6201 of the Patient Protection and Affordable Care Act of 2010: Nationwide Program for National and State Background Checks on Direct Patient Access Employees of Long-term Care Facilities and Providers. This section of the Affordable Care Act authorizes the NBCP. Accessed at: https://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf.
- Evaluation of the Background Check Pilot Program – Final Report. This report by Abt Associates, Inc., from August 2008 describes the background check programs developed by the pilot States and presents results from the evaluation of the pilot program. Accessed at: https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Reports/Research-Reports-Items/CMS1215663.html.
- Information on the CMS National Background Check Pilot program. Accessed at:http://bgcheckinfo.cna.org/about-nbcp/pilot-program.