ADMISSIONS AND THE LAW: How to Handle Criminal Background Checks (“CBCs”)

1. ADMISSIONS AND THE LAW: How to Handle Criminal Background Checks (“CBCs”) Patricia T. Bergeson, J.D. Rosalind Franklin University of Medicine and Science

2. ADMISSIONS AND THE LAW: How to Handle Criminal Background Checks Developing a CBC protocol: do you have to do CBCs or is it a policy decision? Reasons to implement CBCs: • because state law requires it • so far, no federal law requires it • because affiliation agreements with clinical sites may require them or

3. because a criminal record may prevent a student from receiving a professional license once the educational program is completed (most state boards do their own criminal background checks) • hospitals where students will receive clinical education are required under JCAHO to do checks on all who provide patient care, employees or not • safety concerns both at the educational institution, at clinical rotations, and in future workplaces

4. Potential drawbacks of CBCs: • not infallible • occasionally, identity mix-ups occur • expense • administrative burden • may unfairly affect minorities • can be misused as basis for prohibited discrimination

5. Who pays? • most often, the costs of the CBC will be the responsibility of the student • be sure to so advise students

6. What type of CBCs are available? • state background checks (may consider requiring a check of all states where the applicant has lived) • Federal Bureau of Investigation (requires fingerprinting but covers the entire U.S.) • Interpol (particularly if the institution has a large number of foreign students) • many private companies provide CBCs, tailored to the needs of the institution

7. When should CBCs be conducted? • clear preference for the time period after (conditional) acceptance but before matriculation • avoids a student enrolling and paying tuition, only to be found ineligible to continue

8. Devising a protocol for conducting CBCs • develop a policy • design and implement procedures • retain a vendor to run the CBCs • announce to students and other constituencies • educate all about the process • set up a small committee or assign designated individuals to consider unfavorable CBCs • maintain confidentiality as much as possible (“need to know” basis disclosure only)

9. What to do with negative findings • disseminate information to committee or designated individuals • advise student of unfavorable result • ask student for explanation of underlying circumstances • distinguish between arrests and convictions • consider any pattern of conduct that appears troublesome

10. Can arrests be considered? • under most states’ law, no, because equal opportunity laws recognize that some minorities have been and are targeted unfairly for arrest • some states (e.g., Wisconsin) forbid consideration of convictions in employment situations unless “substantially” related to the program of study or fitness to practice in the chosen area • BUT underlying conduct can be considered, as well as a pattern of objectionable behavior, e.g., a string of arrests

11. Accuracy of information • it depends! • not unusual to receive inaccurate or incomplete reports • “common” names can yield confusing results • always couple the CBC with a request for honest disclosure by the student, with a signature attesting that all relevant information has been disclosed, and the caveat that if this is violated, immediate dismissal may result

12. What kinds of findings are problematic? • registered sex offenders • felony convictions • theft • violent acts (misdemeanor or felony) • DUIs • drug violations • Health and Human Service/Office of Inspector General excluded individuals • no convictions but a pattern of arrests (but only the underlying incidents may be considered, not the fact of the arrest itself)

13. Some possible disclaimers • successful completion of a CBC does not ensure a student will be eligible for licensure or future employment • clinical agencies may establish more stringent standards for their facility • clinical agencies are free to conduct additional background checks if they deem them necessary • if during a clinical rotation information becomes available that a student is not eligible for clinical placement, the student will be deemed not able to meet the learning objectives and may be withdrawn pending a resolution of the matter

14. Resources • policies of other institutions • American Association of Medical Colleges policy statements and committee reports on its website: www.aamc.org • vendors that perform CBCs (e.g., Intelius, PreCheck, Inc., Certiphi, Inc.) • licensing agencies • “Background Checks in the University Admissions Process: An Overview of Legal and Policy Considerations” by Darby Dickerson, Journal of College and University Law, Volume 34, No. 2 (2008)