A Roadmap to Implementing Statewide Eligibility Determinations
A PDF version of this paper is available to download.
The Affordable Care Act established the National Background Check Program (NBCP) to improve the health and safety of long term care (LTC) residents by establishing a nationwide program for screening applicants seeking employment with LTC facilities and providers. Twenty-six participating States are benefiting from efficient, effective, and economical procedures for conducting comprehensive background checks on prospective direct access employees1.
Each State addresses NBCP requirements while also navigating its own State laws, regulations, and processes. As a result, each NBCP State has established its own unique background check program – no two programs are identical. However, all States followed a similar "road" to implementation, facing similar challenges and decisions and working with similar stakeholders. This paper provides a high-level roadmap for States considering entry into the program. It will also benefit participating States that are still building their programs. Case studies from Oklahoma and West Virginia are used to illustrate each step along the way.
The roadmap focuses on establishing a centralized statewide eligibility determination unit, hereafter referred to as the Unit. The Unit is responsible for receiving and reviewing State and federal criminal history information and for making a determination of an applicant’s fitness for employment in LTC facilities based on pre-determined standards. The fitness (or eligibility) determination remains valid for a specified period of time and may be used by multiple providers across the State. Some aspects of launching the Unit are beyond the scope of this paper, particularly developing State legislation to enable the Unit. CMS offers technical assistance for that and all other aspects of NBCP.
Exhibit 1 summarizes the road to statewide eligibility determination, from understanding where the State is currently to designing and implementing the Unit.
Exhibit 1. The Road to Statewide Eligibility Determination
Each State starts from its own place, with existing requirements and processes related to LTC employees. Understanding how a State’s baseline compares to NBCP requirements indicates how far the State will need to go and where to focus its efforts. Exhibit 2 is a template to help the State document its baseline.
Exhibit 2. NBCP Baseline Template
|Regulations and Standards
LTC employment standards
|Are there State-legislated requirements on checking worker backgrounds in statute, rule and regulation, or Medicaid program policies? Or are there voluntary guidelines?|
|Which types of LTC workers are covered by requirements/guidelines?|
|What are the current eligibility standards, i.e., which offenses are disqualifying?|
|Which registries are currently checked by providers?|
|Regulations and Standards
|Are there provisions for disqualified applicants to appeal? What are the bases for appeals, e.g., information errors, rehabilitation, etc.?|
|Can restricted employment be granted, e.g., with lesser patient access?|
|Regulations and Standards
Criminal records handling
|Are there open records or restricted access in the State?|
|Do providers receive State criminal histories of employees? How about Federal criminal histories?|
|How long are criminal histories kept in employee personnel files? Are they stored only as long as the individual is an employee? Can criminal history information be shared in any circumstances? With whom?|
|Are LTC workers regulated by one or multiple State organizations?|
|Which State organizations have what roles, e.g., State Police/Bureau of Investigation, Health Department, Licensing Boards, IT agencies, LTC Ombudsman, State-charted advisory boards, State legislature committees, etc.?|
|Are there elder care industry associations in the State?|
|Are there elder care employee associations in the State?|
|Are there elder advocacy groups (e.g., AARP), in the State?|
|Is there an existing LTC advisory group?|
|Does the State cover any fees related to criminal history checks for LTC workers? Does it reimburse any provider types for this cost of doing business?|
|What are the fees paid for fingerprinting, a fingerprint-based State criminal history fingerprint check, a Federal criminal history check, State rap back, and Federal Rap Back? Who pays these fees – providers and/or applicants?|
|Does the State have an automated background check management system that tracks background checks for LTC workers?|
|If so, what aspects of LTC background checks are automated? Registry checks? Licensure checks? Integration with the State Police to receive criminal history information electronically? Provider notifications? Appeals processing?|
|Are fingerprints required for LTC employees? If not required, do employers have authority to request federal and/or State criminal history based on fingerprints? If so, is fingerprinting a common or rare practice?|
|Is there an existing fingerprinting infrastructure? What programs does it serve? Is it electronic or hard card or a combination?|
|Does the State monitor and report new criminal records about LTC workers? About other regulated workers?|
|Which criminal records are reported — State, Federal, both?|
|Does the State make an eligibility determination based on an applicant’s criminal history information?|
|Can LTC employment applicants be qualified by connecting to past eligibility determinations?|
|For what period of time are past determinations valid?|
The baseline in many States reflects inefficient and inconsistent processes for LTC employment eligibility. For example, in West Virginia, every provider type and program had its own process prior to NBCP. There was a minimum requirement of doing a State fingerprint-based check, but federal checks were only required if the applicant had lived outside the State within the past five years. Some programs had requirements to repeat fingerprinting employees every three years and some had no repeat fingerprinting requirements. The list of disqualifying offenses varied drastically, with some programs simply telling providers to reject applicants who had committed a crime against a care-dependent person without guidance about what crimes or how to verify such history.
Many individuals and organizations are impacted by the implementation of NBCP. Given its complexity, it is likely to have varied stakeholder support. Keeping stakeholders informed and engaged throughout the process is critical to the success of the program. The following stakeholder engagement approaches have proven useful for current NBCP States:
- Leadership – Plan increased involvement of senior-level stakeholders in the early part of the project to clear obstacles. After that, high-level updates may be sufficient.
- Stakeholder register – Keep track of stakeholders, their contact information, and who they represent; manage the frequency and type of contact with each.
- Advisory group – Nearly every NBCP State has formed an advisory group so that varied interests have voices, barriers to success are identified, and conflicting views can be negotiated. Advisory groups typically meet every three or six months. Many States also formed a working group of stakeholders with greater involvement to develop and implement program details.
- Public relations – Plan the campaign to inform the public and the LTC community about the program and how it will affect patients, families, and care providers.
Engaging LTC Stakeholders
LTC stakeholders are more likely to support the program if they have a say in its formation.
Oklahoma State Department of Health (OSDH) established a Stakeholder Advisory Board including:
The Board held bi-annual meetings to ensure that they understood the NBCP’s goals. OSDH also used these meetings to get an initial sense of each organization’s perspective on the program and to identify program elements that caused concern. A subset of the Board was selected to serve on a workgroup to develop operational guidelines for the State grantee agency to implement the NBCP grant.
West Virginia credits engagement with the WV Health Care Association for their success in legislation and in design of the program. That association represents 130 member nursing facilities, assisted living communities, and residential retirement centers, providing an important voice from the LTC community.
Engaging with LTC stakeholders helps form a consensus about what the program should accomplish. The Affordable Care Act authorized a program "to identify efficient, effective, and economical procedures for conducting background checks." Efficient, effective, and economical are therefore the touchstones for each State’s background check program. States have adopted versions of the following principles to further guide the design of their programs:
- Fairness – The same standards can be used to determine eligibility for applicants across the State, not varying by individual provider or the facility representative making the determination on a given day. The appeals process for disqualified applicants (independent from the original determination process) can fairly recognize mitigating circumstances and rehabilitation.
- Consistency – Establishing a standardized list of relevant circumstances to consider when making a determination (which registries should be checked, what criminal history elements matter).
- Security – Assigning State resources to maintain security of sensitive data on applicants.
- Cost savings – Using rap back to enable ongoing employee eligibility without compromising safety.
- Speed – Providing timely determination of eligibility so that hiring is not unduly delayed.
- Reducing burdens on providers – The statewide Unit tracks the disposition of court actions and becomes expert in reading criminal histories from 50 States and hundreds more local jurisdictions, rather than each provider needing to track and interpret that information.
- Strong LTC workforce – The program should not pose unnecessary barriers or costs to workers and employers to maintain a strong State LTC capability.
- Program evaluation – Tracking and analyzing program results such as increases in disqualifications for a particular type of applicant or from a particular type of provider. Case studies can also be part of program evaluations, providing powerful evidence of program value.
Broad Intent and Specific Goals
Oklahoma translated broad program intent into several specific goals:
The Advisory Board informs policy and high-level program design decisions. It is also helpful to form a Working Group to design and implement detailed program elements, with membership from the organizations that will participate in the program. Oklahoma’s Working Group included providers, law enforcement, and system administrators. They developed legislation, including fees and disqualifying convictions, and proposed processes to implement the program.
Each State’s program is different, but we can suggest several common design considerations:
- Rap back and associated features;
- Financial planning;
- Leveraging other BC programs;
- Coordinating with licensing boards;
- Developing the program infrastructure; and
- Designing to address challenges and to leverage enablers.
Units typically include a Program Manager, Determination Analysts, and Administrative Assistants. They can also include legal staff to review criminal history questions and IT staff. The organizational placement of the Unit varies—in West Virginia it is with the Department of Health and Human Resources’ Office of the Inspector General and in Oklahoma it is housed in the Survey and Certification agency. Long-term staffing can vary from initial staffing as the volume and nature of the work changes, as discussed below. Technical assistance offered by CMS can help States estimate workload and staffing needs for operational NBCP programs.
Initial and Long-Term Staffing
The type and volume of work is different in the first year versus steady state operations.
Oklahoma began with the program manager, an administrative assistant, two determination analysts, and four assistants. There was a learning curve as procedures became familiar. Over time the mix of applicants transitioned from primarily new enrollees in the beginning, to primarily existing enrollees who are easier to process. Three years into program implementation, there are two assistants; however, the long-term plan is to employ only one assistant. For reference, this staff handles 5,000-6,000 applications per month.
Advice from Oklahoma to other States is that staff hiring can be a lengthy process. Hiring the Program Manager required six months since it was a new position. Recognize this long-lead item and start early. Consider job descriptions from other NBCP States to get a jump start. Oklahoma also considered hiring a State employee to manage the startup process but decided against hiring for a position that would be eliminated once the program was in full operation. Startup staff can also be employed through temporary agencies.
The West Virginia Unit includes three determination analysts with backgrounds in public health, law, and law enforcement respectively. In spite of disparate backgrounds, all analysts are trained to handle all provider and employee types. Consistent eligibility criteria across these types should enable Unit staff to be interchangeable which balances workload.
Rap back solves the "snapshot in time" issue with one-time background checks by reporting subsequent criminal history. A State rap back system allows a State’s Criminal Justice Information Services (CJIS) agency to immediately report any new criminal history record information (CHRI) against an employee that arises after the employee’s pre-employment background check is completed. The State CJIS agency continuously checks employees’ retained fingerprint records against incoming CHRI (e.g., arrest or conviction information) to determine whether there are matches. If there is a match, updated CHRI is reported to the State agency that originally requested the background check. The grantee State agency is responsible for analyzing the CHRI and notifying the employee and employer(s), in accordance with State rules and regulations.
States have different rules about which activities trigger rap back notification. Notices can result from arrests or convictions; can be limited to selected offenses; and can report expungements and other events. Rules also govern how States confirm that an employer still has a valid interest in an individual’s criminal history; what information is provided; and the method of notification. Some States do not have operational rap back for non-criminal justice purposes. The NBCP program can still be implemented, but the program may have to limit the length of time a fitness determination is valid.
The FBI provides national Rap Back information so that out-of-state criminal records can be reported to the State CJIS agency. This information can be used by the State determination unit to change the eligibility of an employee, but forwarding this information to providers can be problematic because parties holding such information must have stringent security procedures subject to FBI audit. In Oklahoma, the State redacts even the presence or absence of federal criminal records before notifying providers.
Connection records complete the optimal background check program. If an individual seeks employment with a LTC provider and is determined eligible based on the State’s background check, subsequent applications for employment can "connect" to that original determination which is valid for a time period set by each State. That time period is typically short for programs that do not have rap back. For example, the District of Columbia (without rap back) allows eligibility for six months, whereas Oklahoma (with State and federal Rap Back) allows eligibility indefinitely. Providers and the State save the time and expense of a new background check without compromising program goals. Exhibit 3 summarizes the combination for long-term efficiency—fingerprinting, State and federal Rap Back, and connection records.
Exhibit 3. Fingerprinting, Rap Back, and Connection Records
NBCP States receive federal grant funding to help them establish their programs. Grant funds can cover costs related to program development, implementation, and operation during the grant period, including personnel, travel, and the direct costs of conducting background checks (e.g., fees paid for fingerprinting and criminal history checks), training costs, and indirect and overhead costs.
States need to match initial costs with funding during the NBCP grant period, and design a sustainable program for beyond the grant term. Exhibit 4 lists the primary costs and revenue sources including fixed and variable (per applicant) items. Each State program determines the mapping of costs to revenue sources. For example, applicants and/or providers typically pay for fingerprinting directly to the vendor. However, some States have used grant funding during the startup period to pay for fingerprinting, and once those dollars have been spent the providers and/or applicants are responsible for this cost.
Exhibit 4. Program Costs and Revenue Sources
|Costs||Potential revenue sources|
Below are three funding approaches from different States.
- Applicant-Provider-State Cost Share – In Illinois, the State Determination Unit is supported through State general funds, with the applicants and providers paying the fees. The applicant pays for the fingerprinting fee, with a five year re-printing State requirement, and the provider pays for the criminal history check and State rap back fees.
- Add-on Provider User Fee – New Mexico uses the model above but providers pay an additional fee to fund the State Determination Unit.
- Flat Rate Model – Oklahoma has developed a financial model that builds a long-term self-sustaining program. Applicants pay a one-time fingerprint fee and providers pay the same flat rate for all applicants whether new or previously enrolled. The provider fee does not fully cover the cost to process new enrollees but exceeds the cost for handling existing enrollees. Over time as more existing enrollees apply to different providers, the average cost per applicant goes down and the initial shortfall is recouped, as shown in Exhibit 5.
Exhibit 5. Flat Rate Funding Model
In West Virginia, enabling legislation passed with the proviso that the program would need to be self-sustaining based on provider fees without State general funds. The Program Director collected data from the pre-existing fingerprinting program to project the number of applications, estimated operational costs using cost data from the grant application, and calculated the required fee per application.
West Virginia also leverages Civil Money Penalty (CMP) funds to support the program. The WV Health Care Association received a CMP grant to defray the cost of background checks for current nursing home employees. Other types of LTC providers cannot receive CMP funds from nursing home penalties because they must be used for the benefit of nursing home residents only. However, other LTC providers benefit since qualified workers become enrolled and disqualified workers are removed from the shared workforce.
Leverage other background check programs
States should consider connecting with other background check programs either existing or planned. Efficiencies can be gained by sharing infrastructure for collecting fingerprints, background check information technology, and determination specialist staff. The highlight box below describes efficiencies gained by Oklahoma and Florida.
Leveraging other BC Programs
Your State may check backgrounds for other employees working with vulnerable populations, or working in sensitive positions. Can your LTC eligibility program share resources?
The Oklahoma Department of Education has an established background check program for educators, district personnel, and school support staff. They had an existing network of fingerprint service providers and the Department of Health was able to use this network for the LTC background check program. They are re-bidding these vendor contracts as a joint requirement and expect to gain economies of scale.
Sharing resources may be easier than sharing screening results across different programs. Oklahoma also operates a screening program for child care and foster care applicants. A common eligibility clearinghouse has been discussed but the eligibility criteria are different, so an applicant could qualify in one program but not in another.
Florida established a Clearinghouse combining resources for seven background check programs. The Care Provider Background Screening Clearinghouse provides a single data source for positions serving children, the elderly, and disabled individuals. Criminal history checks are shared among specified agencies when a person has applied to volunteer, be employed, be licensed, or enter into a contract that requires a State and national fingerprint-based criminal history check. Legislation enabled common criteria for eligibility across these positions.
Coordinate with Licensing Boards
Work eligibility and professional licensing are separate functions with separate criteria and authorities. Each State customizes roles and responsibilities between these programs to match unique requirements—there is no single formula for coordination since States differ in which professionals must be licensed, criteria for maintaining a license, etc. The NBCP encourages early coordination since many LTC workers touch both programs. For example, healthcare workers wanting to obtain or renew a professional license or certification must undergo a fingerprint-based federal background check in some States. When these same individuals apply for work in an LTC setting, they are required to again undergo a fingerprint-based federal background check. States that staff fitness determination and licensing in the same office may be able to use the results from a single federal criminal history report for both licensing and employment eligibility purposes5.
Background Checks vs Licensing
Clarify the roles and responsibilities across programs.
In Oklahoma, the background check program collects fingerprints for licensed health care professionals. If there is criminal history information, it is given to the applicant and the applicant is told to take the information to their professional licensing board. The licensing board decides whether the criminal history is a barrier to licensing and provides that information to the eligibility determination unit.
The timing of background checks versus training and certification of employees can also be coordinated. Oklahoma unlicensed health care professionals generally receive background checks in advance of training and certification. However, the Unit noticed that some nurse aides receive training and certification only to be declared ineligible for employment based on a background check. The State is developing legislation to improve this situation, calling for background checks as a prerequisite for nurse aide training.
Develop the program infrastructure
State Units include the facilities, equipment, information technology, and interfaces necessary to operate the NBCP.
Aside from Unit staff needing a productive workspace, there are security and safety considerations. The Unit handles sensitive personally identifiable information (PII) so physical and cybersecurity are critical. Facilities must meet federal CJIS requirements for the handling and storage of federal criminal history information. The physical safety of Unit staff is also a facility consideration. Unit staff has been threatened as a result of disqualifying applicants.
The Unit itself does not require specialized equipment but the program requires fingerprinting infrastructure (equipment and facilities) throughout the State. In some States, fingerprinting infrastructure is provided by potential employers or State agencies. In other States, law enforcement agencies or approved electronic fingerprinting vendors conduct the fingerprinting. The Federal Bureau of Investigation (FBI) will only accept electronic fingerprinting (e.g., live scan).
States can look for ways to share equipment and systems across participating State agencies. West Virginia had a freeze on purchasing servers, so the Unit began by using a server previously purchased and hosted by the State Police at their facility. NBCP grant funds helped the State Police finish rap back programming and purchase a new criminal history system.
Every State operates an information system that automates the application and determination process. CMS offers a customizable Background Check System (BCS) through grant technical assistance. The BCS or an equivalent system automates:
- Provider registration;
- Application intake and processing;
- Registry checks;
- Licensing checks;
- State and federal criminal history records handling;
- Rap back notifications;
- Tracking dispositions of court actions;
- Notification of determination;
- Appeals/waiver handling;
- Payment processing; and
- Information security provisions.
Interfaces are implemented with technical information system connections but they are first defined by business processes. The Unit interfaces with:
- Licensing bureaus;
- State CJIS; and
- Potentially with systems in nearby States.
Design around challenges and enablers
NBCP planning (and the legislative process) will bring to the surface detractors who challenge the program based on real or perceived disadvantages. There also will be supporters who recognize advantages and can enable the program. Program design should address the challenges and leverage the enablers. They will differ in each State, but Exhibit 6 explains the picture in Oklahoma.
Exhibit 6. Oklahoma NBCP Challenges and Enablers
|Home and Community Based Waiver providers were concerned that the program would delay their ability to hire. A compromise allowed these providers to participate voluntarily. Most now participate in the program after seeing how quickly it works.||Groups representing LTC patients such as AARP can be strong enablers of the program, pressing legislators to close on solutions. Similarly, support from the State LTC Ombudsman was critical to success.|
|Long term care hospitals did not want to disrupt longstanding relationships with background check service companies. They also were allowed to participate voluntarily.||The program is designed to check new applicants for employment, and some providers wanted to use the system to check current employees. Providers were permitted to use the system for current employees but must pay the full cost of associated background check fees.|
|The State Bureau of Investigation was concerned about losing fee revenue with background checks that do not expire, supported by rap back to maintain eligibility. The program was able to demonstrate that the greater number of employees requiring initial background checks would compensate for the loss of revenue from recurring background checks.||Oklahoma recognized that LTC providers had trusted relationships with the businesses that check employee background. Oklahoma gained the support of these firms by defining the “managing agent” role – experts in the OK-SCREEN system to whom providers can outsource processing of potential employees. The new program no longer needed these firms to check backgrounds but it called for more categories of LTC workers to be checked, meaning more transactions for those managing agents who adjusted their offerings to the new needs.|
|Providers were concerned that the program could delay hiring as they wait eligibility determination by the State. In response, the program allowed a 60-day provisional employment window, and the State pointed to experience in Michigan where most determinations were completed within one day.|
The program can design and promote. Medicaid requires providers to check the OIG List of Excluded Individuals and Entities (LEIE) each month. In West Virginia, the core BCS has the ability to link to the OIG LEIE public facing website and will check name and date of birth for the individual. It will return matches that are close and then the user will need to determine if any of those matches are for the individual undergoing screening. Background check legislation allowed LTC providers to be eligible for a reduced fee for a State criminal history check.
Implementing NBCP has been a multi-year effort for all States. Typically the development and passage of enabling legislation is the longest stage; depending on the degree of advanced planning, the first employee application can require a couple of months to a couple of years.
West Virginia notes that implementing training for providers to use the program is a time-consuming early-stage activity. Web- and video-based training rather than only live events is advised.
Below is additional early experience from West Virginia and Oklahoma.
- The term “direct access employee” means any individual who has access to a resident or patient of a LTC facility or provider through employment or through a contract and has duties that involve (or may involve) one-on-one contact with a patient or resident of the facility or provider, and could also have access to financial information, property information, and more, as determined by the State for purposes of the NBCP.
- CMS provides a tool to estimate the number of expected background checks at http://bgcheckinfo.cna.org/resources/state-specific-technical-assistance/background-checks-estimator
- CMS-defined employee categories include
01 – Executive, Administrative, Managerial
02 – Professional/Licensed Health Care
03 – Technical, Unlicensed Health Care
04 – Laboratory and Radiology Services
05 – Food and Dietary Services
06 – Housekeeping and Engineer Services
07 – Any other direct access employee
08 – Applicant self-initiated
- CMS defined provider/facility categories include
01 – Skilled nursing facility
02 – Nursing facility
03 – Home health agency
04 – Hospice
05 – Long term care hospital
06 – Personal care service provider
07 – Adult day care
08 – Residential care (Including assisted living)
09 – Intermediate care facility developmentally disabled (ICF/DD)
10 – Any other facility or provider of long term care services (Including staffing agencies)
11 – Applicant self-initiated
- The Federal Bureau of Investigation (FBI) limits secondary dissemination of FBI records reporting.