Effective as of October 1, 2010, health care facilities and health care professionals in Tennessee who employ individuals to provide direct patient care will be required to perform a registry check on those individuals, or obtain written assurances that the requisite registry check has been performed, if a full background check has not been performed.1 Those health care providers who comply with this requirement will be immune from civil or criminal liability based solely upon the information provided through the registry check, including claims related to the provider’s refusal to employ or contract with an individual based on the information in the registry check. Mental health organizations also have expanded responsibilities under the new laws with respect to background checks that must be performed on those individuals having direct contact with or responsibility for their service recipients. The specific requirements of the new laws are outlined below.
Registry Check Requirements for Health Care Facilities and Health Care Professionals
The new statutes specifically require that licensed health care facilities2 and most licensed health care professionals3, with the exception of veterinarians, perform a “registry check” prior to employing or contracting with any person who will provide direct patient care, and for whom a background check has not been completed. The required registry check must include the following:
- Checking the national sex offender public registry website coordinated by the U.S. Department of Justice – this must include a state-by-state search for each state in which the person has lived in the past seven (7) years, and the Tennessee Bureau of Investigation’s sexual offender registry; and
- Checking any adult abuse registry maintained for any state in which the person has lived in the past seven (7) years; and
- Checking the Tennessee Department of Health’s elder abuse registry.4
The new registry check requirements are limited to individuals who will have direct patient contact, and do not apply to cleaning services, office or medical equipment maintenance services, or other services where direct patient contact is not intended.
Health care facilities are further prohibited from employing or contracting with “any person” to provide direct care to residents or patients if the person is listed on any of the above listed registries, 5 while health care professionals are prohibited from employing or contracting with an “applicant” who is listed on any of the registries.6 It is unclear whether this is an intentional distinction – that facilities are charged with ensuring that any and all of their direct patient care providers are not listed on any of the registries, while health care professionals are responsible only for ensuring that new applicants are not listed. However, it is worth noting and health care facilities may want to review their personnel and human resource policies accordingly.
Health care facilities and professionals will need to obtain written confirmation from their staffing companies and agencies that the required Registry Checks are being performed for individuals who are being supplied to perform direct patient care duties. With respect to those staffing company agreements, healthcare facilities will need to do the following:
- Receive and retain written documentation from the staffing company or agency that any individual supplied is not listed on any of the applicable registries; and/or
- Rely on written contractual representations from the staffing company that they have performed name searches required under T.C.A.§ 68-11-271(a) (1)-(3), and that any individual supplied by the company is not listed on any of the registries.7
Health care professionals are required under the statute to obtain a documented representation from the staffing company that any person who will be supplied to work in the office is not listed on the applicable registries.8
Health care facilities and professionals who perform the requisite registry checks and/or obtain the required representations from their staffing companies for individuals providing direct patient care in accordance with the new laws will not be subject to civil or criminal liability solely based upon the registry information. This immunity also applies to any claims related to refusals to employ or contract with an individual based upon information obtained from the registries.9
The new laws also require the Tennessee Department of Health to post on its website and the websites of the applicable licensing boards a conspicuous link to the required registry check databases by October 1, 2010. In addition, the applicable licensing boards will be required to notify their licensees at least annually of their responsibilities under the new registry check laws.
Mental Health Organization Background Checks
Under the new laws, licensed mental health organizations (MHOs)10 are required to obtain a criminal background check on each employee whose responsibilities include direct contact with, or direct responsibility for, service recipients. The MHO will need to inform the applicant/employee that the background check will be performed. The applicant/employee will be required to provide the following to the MHO within ten (10) days of employment or the change of responsibilities that include direct contact or responsibility for service recipients:
- Past work history with a continuous description of activities over the past (5) years;
- List of at least three (3) individuals as personal references, one (1) of whom should have know the applicant for at least five (5) years;
- A release for all investigative records to the MHO for examination for the purpose of verifying the accuracy of criminal violation information contained on an application to work for the MHO; and
- Either (a) supply fingerprint samples to be submitted for criminal history records check to be conducted by the Tennessee Bureau of Investigation (TBI) or the Federal Bureau of Investigation (FBI); or
(b) a release of information for a criminal background investigation by a state licensed private investigation company.
The MHO is required to check all the past work and personal references prior to the employment of an applicant. At a minimum the MHO must:
- Communicate directly with, (i) the most recent employer, and (ii) each employer identified by the applicant as having employed the applicant for at least six (6) months within the past five (5) year period.
- Communicate directly with at least two (2) of the personal reference identified by the applicant.
- Within or prior to ten (10) days of employment of the person, submit the information required to the entity that will conduct the criminal background check.
The MHO is responsible for any costs incurred by the TBI, FBI, or state licensed private investigation company.
What To Do Now
- All health care facilities and health care professionals covered under the new laws should review and update their hiring policies, and ensure that a background check or registry check has been completed for each potential employee or contractor who will have direct patient contact.
- Health care facilities also need to ensure that all current employees and contractors with direct patient contact responsibilities are not listed on any of the previously mentioned registries.
- All health care providers should require their staffing companies to certify to them in writing that any individual supplied by the staffing company for direct patient contact positions, is not listed on the applicable registries.
- Mental health organizations will need to conduct the requisite criminal background checks on any employees/applicants who will have direct contact with or responsibility for the MHO’s service recipients.