Managing Criminal Background Check Records During and After Employment in the District of Columbia

Background check investigations are important in long term care settings because of its vulnerable patient populations, such as elderly and mentally or physically compromised patients. And, most states require long term care organizations, such as Skilled Nursing Facilities or Home Health Care Agencies to obtain criminal background records on employees. Because background checks consist of an array of sensitive and private information, State laws also set forth specific requirements for employers to follow in safeguarding the information during and after employment. 

Here, we review the laws of the District of Columbia relating to safeguarding employee background check documents. 

District of Columbia requires both licensed and unlicensed employees to submit fingerprints to and undergo a criminal background check performed by the DC Metropolitan Police Department (MPD) or the Federal Bureau of Investigation (FBI). All criminal background checks must be completed within 45 days of commencing employment. If there is a positive conviction result, the District will alert the facility. 

LICENSED EMPLOYEES (DC CODE §3-1205.22)

All licensed employees must receive a criminal background check performed by the MPD or the FBI. In addition to a criminal background check, if DC does not provide them, the DC laws require facilities to also perform a search of Dru Sjordin National Sex Offender Public Website and the Nurse Aide Abuse Registry of the District or the state or states in which the person has lived or worked. 

Although not expressly required under DC laws, employers should consider performing other background checks including identity verification, employment and education verifications, periodic federal exclusion searches, drug screening, licensing disciplinary searches, and driving records searches for their employees. Education verification is important, for example, because payment received from federal or state payers could depend on the license or competencies of the licensed health aides or caregivers. 

1. Who are licensed employees?

DC Department of Health (DOH) requires persons practicing in any of the following fields to obtain a license:

• Acupuncture 
• Advanced Practice Addiction Counseling 
• Advanced Practice Registered Nursing 
• Assisted Living Administration 
• Audiology
• Chiropractic
• Certified Midwifery
• Certified Professional Midwifery 
• Cytotechnology 
• Dental Hygiene 
• Dentistry
• Dietetics
• Histotechnology
• Home Health Care Administration 
• Marriage And Family Therapy 
• Massage Therapy
• Medical Laboratory Technology
• Medicine
• Naturopathic Medicine 
• Nutrition
• Nursing Home Administration 
• Occupational Therapy 
• Optometry
• Pharmaceutical Detailing 
• Pharmacy
• Physical Therapy 
• Podiatry
• Practical Nursing
• Professional Counseling 
• Psychology
• Registered Nursing 
• Respiratory Care 
• Social Work
• Speech-Language Pathology 
• Veterinary Medicine
• Anesthesiologist Assistance
• Athletic Trainer
• Personal Fitness Trainer 
• Physician Assistant
• Physical Therapy Assistant
• Polysomnographic Technologist 
• Occupational Therapy Assistant
• Surgical Assistant
• Professional Art Therapy
• Trauma Technologist In The District

UNLICENSED EMPLOYEES  (DC CODE § 44–552; DCMR 22-B47)

The District requires criminal background checks for certain “unlicensed persons” or employees. Similar to the licensed professionals, the District will perform the criminal background checks for “unlicensed persons.” The facility, however, must ensure to obtain search results from the federal sex offenders’s registry and all relevant state Nurse Aide Registries. Again, it is recommended that healthcare facilities, specifically long term care organizations, perform the following background checks for their unlicensed employees: identity verifications, employment and education verifications, periodic federal exclusion searches, drug screening and driving records searches.    

1. Which unlicensed employees need background checks?

DC law defines unlicensed persons to mean persons who are not required to have a license and who function in a complementary or assistance role to licensed health care professionals in providing direct patient care or in performing common nursing tasks.  Unlicensed persons may include the following:

• Nurse Aides 
• Orderlies
• Assistant Technicians 
• Attendants
• Home Health Aides 
• Personal Care Aides 
• Medication Aides
• Geriatric Aides 
• Other Health Aides
• Housekeeping
• Maintenance 
• Administrative Staff (employee or contract worker) who could foreseeably come in direct contact with patients.

2. Which unlicensed employees do not require background checks?

Criminal background check requirements do not apply to the following list of employees:

• Person employed on or before July 23, 2001; and,
• Volunteers to a facility who works under the direct supervision of a licensed person; and
• Any unlicensed persons who do not function in a complementary or assistance role to licensed professionals or would never come in direct contact with patients. 

RECORDKEEPING RULES

1. Managing Employee Criminal Background Records During Employment

DC law requires a facility to keep confidential all criminal records received for the purpose of employing an unlicensed person. The records shall not be released or disclosed to any person except to: 

• The Mayor or Mayor's office during an official inspection or investigation of the facility
• The person whose background is being investigated
• Comply with an order of a court
• Any person with written consent of the person being investigated.

2. Managing Criminal Background Check Records Post-Employment

This is where DC laws get a bit confusing.  

DC Code §44–552 states that all criminal records received by a facility shall be destroyed after one (1) year from the end of employment of the person to whom the records relate.  Although it requires facilities to destroy the criminal background records, DC Code does not specify when after one year facilities must destroy the records.

In contrast, DC Municipal Code 22-B4704.4, does not require a timeline for “destroying” the records. Instead, DCMR recordkeeping provisions require that each facility shall maintain the criminal background records in the facility for at least one (1) year after the end of the employment of the person to whom the records relate. DCMR does not require the facilities to destroy the records after 1 year.

In light of this dichotomy, the best practice could be to keep the records for one year after the date of termination and destroy it soon after.  This practice can reduce liability, especially if there is an inadvertent breach of employee records.

3. Penalties For Unauthorized Release Of Criminal Records

Any person releasing or disclosing criminal records in violation of the DC rules shall be guilty of a misdemeanor and shall be punished by the payment of a fine not greater than $300 or imprisoned for no more than 30 days, or both. Additionally, civil fines, penalties and fees may be imposed. 

Given the steep penalties discussed above, it makes sense that facilities should destroy any criminal records for ex-employees as soon as practicable.

CONCLUSION

Managing all the documents and due dates for employees can become overwhelming, especially in long term care organizations which employ hundreds of licensed and unlicensed staff as employees or contract workers. Utilizing automation tools that specialize in streamlining employee management in long term care organizations, such as Perla, can help to substantially reduce the time, cost and liability associated with employee file management. Investments in automating these routine, but voluminous processes have generally a high ROI for LTC organizations.  

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