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 because state law requires it so far, no federal law requires it so far, no federal law requires it because affiliation agreements with clinical sites may because affiliation agreements with clinical sites may require them or 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) 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 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 safety concerns both at the educational institution, at clinical rotations, and in future workplaces

4. Potential drawbacks of CBCs: not infallible not infallible occasionally, identity mix-ups occur occasionally, identity mix-ups occur expense expense administrative burden administrative burden may unfairly affect minorities may unfairly affect minorities can be misused as basis for prohibited discrimination 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 most often, the costs of the CBC will be the responsibility of the student be sure to so advise students 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) 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.) Federal Bureau of Investigation (requires fingerprinting but covers the entire U.S.) Interpol (particularly if the institution has a large number of foreign students) Interpol (particularly if the institution has a large number of foreign students) many private companies provide CBCs, tailored to the needs of the institution 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 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 avoids a student enrolling and paying tuition, only to be found ineligible to continue

8. Devising a protocol for conducting CBCs develop a policy develop a policy design and implement procedures design and implement procedures retain a vendor to run the CBCs retain a vendor to run the CBCs announce to students and other constituencies announce to students and other constituencies educate all about the process educate all about the process set up a small committee or assign designated individuals to consider unfavorable CBCs 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) 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 disseminate information to committee or designated individuals advise student of unfavorable result advise student of unfavorable result ask student for explanation of underlying circumstances ask student for explanation of underlying circumstances distinguish between arrests and convictions distinguish between arrests and convictions consider any pattern of conduct that appears troublesome 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 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 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 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! it depends! not unusual to receive inaccurate or incomplete reports not unusual to receive inaccurate or incomplete reports “common” names can yield confusing results “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 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 registered sex offenders felony convictions felony convictions theft theft violent acts (misdemeanor or felony) violent acts (misdemeanor or felony) DUIs DUIs drug violations drug violations Health and Human Service/Office of Inspector General excluded individuals 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) 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 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 may establish more stringent standards for their facility clinical agencies are free to conduct additional background checks if they deem them necessary 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 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 policies of other institutions American Association of Medical Colleges policy statements and committee reports on its website: www.aamc.org American Association of Medical Colleges policy statements and committee reports on its website: www.aamc.org www.aamc.org vendors that perform CBCs (e.g., Intelius, PreCheck, Inc., Certiphi, Inc.) vendors that perform CBCs (e.g., Intelius, PreCheck, Inc., Certiphi, Inc.) licensing agencies 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) “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)