By WASIF KHAN
For many healthcare providers, their roles as business owner and employer tend to be overshadowed by their role as a healer. While employees can be your greatest asset, they also tend to be one of the largest liabilities as well. Hiring the right employees – properly – will help mitigate risk and ensure compliance within the complex regulatory landscape of the healthcare industry.
How and What to Ask Pre-Offer
Employers have historically asked prospective employees about their salary history before making an offer; however, many jurisdictions have enacted laws that ban employers from doing so. Pre-employment, employers should focus on establishing compensation models commensurate with prevailing market rates and if necessary, inquiries should be focused on applicants’ salary expectations for the position they applied for.
Let’s be honest, salary tends to be a defining factor in hiring activity, but there are a number of questions that tend to be stumbling blocks earlier in the process. Employers must be certain that a prospective employee can actually perform the job that you are seeking to fill. In thinking about whether a prospective employee will meet your expectations, you may be tempted to inquire about limitations or disabilities, children/sick family members that are being cared for, or pregnancy. However, these questions are landmines – you should steer clear of these types of questions or you run the risk of being sued for discrimination (or at the very least, you will have laid a great foundation for a lawsuit in the event you have to terminate the same employee in the future).
An alternative approach that allows an Employer to get to the heart of the matter without running the risk of a lawsuit is to focus your inquiries on whether the individual can, with or without accommodation, perform the essential functions (defined as the fundamental job duties for the position held by an individual with a disability)  and hour requirements of the job. The job-related requirements should be in writing and part of the job description.
In general, background checks are an important tool that can help an entity ensure that it is hiring individuals that will not damage its reputation or expose it to liability. They are particularly crucial in the healthcare industry given concerns for patient safety, unauthorized use/disclosure of information/records, access to controlled substances, and regulatory compliance.
Employers are within their rights to conduct background checks, but should implement a written policy prior to doing so. A good policy will address the following items:
- when and/or for whom background checks will be conducted;
- what information will be sought as part of the check;
- who will conduct the check and the process that should be followed; and
- guidelines for handling background check results.
Background checks should include, at a minimum, social security number validation, screening for aliases, criminal records search, education and work history verification, and registry (sex offender, child abuse, elder abuse, etc.) searches. Additionally, the following checks may be necessary based on the nature of your healthcare practice:
- motor vehicle records for individuals that will be operating company vehicles or driving while performing company business (home health, home visiting physicians, and mobile imaging services, etc.); and,
- credit report for positions that involve the handling of money or authority for transactions involving large sums—unless otherwise prohibited by your state’s law.
Background checks are also subject to timing requirements which vary state to state. Many jurisdictions have adopted fair-chance laws, which seek to delay inquiries about conviction records until later in the hiring process. These laws include but are not limited to “ban-the-box laws” (laws that prohibit asking about criminal convictions on initial employment applications), which are becoming increasingly common. Michigan allows employers to ask about the following criminal history: (i) felony and misdemeanor convictions and (ii) felony arrests which did not result in a conviction. Under Michigan law, employers can not ask about misdemeanor arrests which did not result in a conviction.
Many organizations elect to use third-parties to conduct their search; oftentimes, this is the more efficient route for obtaining accurate information. It may also decrease the chances that you will encounter information about a prospective employee’s protected characteristics.
OIG Exclusion List
If you are (or will be) participating as a provider in federal healthcare programs, such as Medicare/Medicaid/Tricare, one of the conditions of participation is that you ensure no employees or contractors have been excluded from participation in such programs. Accordingly, you should conduct a Fraud and Abuse Control Information System check (which should include a search on the Department of Health and Human Services Office of Inspector General exclusion list).
Reporting Criminal Activity
In the event you identify employees engaging in criminal activity, whether it be embezzlement or some form of healthcare fraud and abuse – you should immediately consult your attorney and talk to your malpractice/business insurance provider. Generally, financial crimes should be reported to the police, and you should discuss self-disclosure ramifications for healthcare fraud and abuse with counsel.
It is crucial for healthcare providers to thoroughly vet their employees. Implementing a good pre-hire vetting process can help you identify the right employee to help your practice grow and mitigate risk associated with bad hiring decisions.
 Jurisdictions with restrictions on requesting wage history include: Alabama, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, Nevada, Ney York, Rhode Island, Vermont and Washington. Many cities have enacted their own ban on various wage related inquiries as well.
 29 CFR §1630.2(n).
 Pre-Employment Inquiry Guide, Michigan Department of Civil Rights available at https://www.michigan.gov/-/media/Project/Websites/mdcr/brochures/pre-employment-guide.pdf?rev=0d0f0e842eb04d8eb8347dc840b448c3