In the aftermath of widely publicized diversion cases involving potential and actual patient harm, many facilities are evaluating their diversion prevention, detection, and response efforts. While it is impossible to permanently thwart diversion, implementing preventive measures can substantially reduce the likelihood that diversion will occur.

The first opportunity to prevent diversion is a commitment to conducting pre-employment screening. Candidates should be screened thoroughly to identify those at highest risk for diverting from the organization. Screening should occur when a conditional offer of employment is extended, and the results should be considered before a final offer of employment is made. Knowledge of federal and state regulations and familiarity with multiple pre-employment screening considerations are critical to ensure a successful program.

Regulatory Considerations

Federal Requirements

Although pre-employment screening is not mandated by federal regulation in most institutional settings, the Drug Enforcement Agency (DEA) has made it clear that candidates should be assessed for the likelihood that they will divert. In 21CFR§1301.90, the DEA states that obtaining certain information is vital to fairly assess the likelihood of an employee committing a drug security breach, and that obtaining such information is essential to overall controlled substance security.1

The candidate should be asked whether he or she has been convicted of a felony in the past 5 years, a misdemeanor in the past 2 years, or is presently formally charged with a crime. In addition, the candidate should be asked whether he or she has used any controlled substances not legally prescribed to him or her in the past 3 years. Finally, the DEA recommends that organizations obtain authorization so that courts and law enforcement agencies can be queried about pending charges or convictions.

Again, while federal regulations do not explicitly mandate pre-employment screening, DEA regulation 21CFR§1301.76 prohibits employing anyone in a role with access to controlled substances if the individual has a felony conviction relating to controlled substances or a prior DEA registration denial, revocation, or surrender for cause. In certain settings serving vulnerable patients—including skilled nursing, home health, hospice, and similar settings—facilities in states that receive funds under the National Background Check Program (NBCP) must require specified information as part of an overall background review for all employees having access to patients or residents. The required items include:

• A fingerprint check of FBI records
• A search of state abuse and neglect registries
• A check of state criminal records

States receiving funds also are required to develop a retained applicant fingerprint background check via the FBI’s Rap Back Service, which retains health care practitioners’ fingerprints and notifies facilities of post-background check criminal convictions. More information about the Rap Back Service is available at www.aci-na.org/sites/default/files/credentialing_-_chasity_anderson.pdf

State Requirements

In addition to ensuring compliance with federal regulations, organizations must check state regulations to ensure they are meeting any adjunct screening requirements. Few states have adopted regulations specific to screening candidates for roles that include access to controlled substances, but some have unique screening requirements. For example, after a case in which patients were harmed by an unlicensed diverter, the state of New Hampshire instituted a requirement that medical technicians be registered with the Board of Registration of Medical Technicians. The statute defines medical technician as an unregistered or unlicensed health care worker who has access to patients and controlled substances. Health care facilities are required to verify the registration of unlicensed candidates who will meet the criteria of a medical technician. Failure to do so can result in fines and other penalties.2

Determine Which Applicants Require Screening

When identifying potential employees for screening, consider that employees without legitimate access to controlled substances often find ways to divert. In fact, many of the most egregious diversion schemes have been perpetrated by technicians, environmental service workers, and others not authorized to access controlled medications. Controlled substances are found throughout health care facilities, and anyone in the facility may take advantage of a moment of inattention by staff responsible for the drugs or any weakness in controlled substance security. Therefore, at a minimum, all employees with access to patient care areas should be screened; ideally, all employees should be screened for risk of diversion at the time of hire.

Pre-Employment Screening Considerations

Several important issues must be addressed when implementing pre-employment screening:

• Employment Application Requirements. The application for employment should include a direct query to identify any history of conviction or termination for drug diversion, a criminal background check, and requests for references from previous employers. Because employers may be reluctant to reveal negative information when a reference is requested for fear of litigation by the candidate, a key question to ask when requesting a reference is whether the candidate is eligible for rehire by the previous employer (see SIDEBAR: Provide Meaningful References). In addition, obtain contact information for all previous employers and explanations for any gaps in employment.

Experience illustrates that personnel with a history of diversion are drawn to institutions that do not perform robust screening. Candidates for employment should be informed at the outset that criminal background checks and other pre-employment screening will be a part of the hiring process. This information serves the candidates’ right to know what information will be sought, and may discourage the application of candidates who are seeking an opportunity to divert.

• Employ a Standardized Reference Verification Process. Primary source verification should be the standard in the hiring process. Request references with specific health care-related experience relevant to the type of position for which the candidate is applying. Moreover, ensure that staff members do not bypass the screening process by hiring in haste. For example, in one diversion case, an experienced critical care nurse was a personal acquaintance of the unit manager for which he was seeking employment. He was hired on the basis of positive references from two non-health care-related previous positions. The only health care-related reference provided was from an instructor in nursing school 12 years prior. No inquiry was made as to why there were no recent references from critical care positions. The nurse was caught diverting within 3 months of hire.
• Usefulness of the Available Data. The utility of pre-employment screening is limited by the validity of the available information. Because the discovery of a diverter can result in negative publicity for an institution, it is not uncommon for facilities to allow diverters to resign without reporting the diversion to licensing boards, the DEA, or law enforcement authorities.
• Limitations of Urine Drug Screening. Some facilities conduct urine drug screens as part of the pre-employment screening process. While drug screens are helpful in that they provide additional information about candidates, oftentimes they do not expose those with a prior history of diversion because the panel used for such screens typically is a basic, non-health care professional panel that does not include all commonly diverted drugs. Consider, also that there may be a window of several days from the conditional offer of employment until the candidate must present for the drug test. The extended period between the offer and the test provides time for drugs to be cleared from the candidate’s system.
• Commercial Background Check Services. Several criminal background check services are available. It is critical to note that when such services are used, the institution retains the responsibility for evaluating the entire application, including the risk that the candidate might become involved in diversion.

Ongoing Screening

Although most organizations have implemented an annual employee screening to ensure that employees do not appear in a federal exclusions database or are otherwise prohibited from working in a health care setting, this screening does not typically include a criminal background check, as carrying out annual criminal background checks on all employees can be burdensome and prohibitively expensive. Instead, licensed staff usually is required to report criminal charges or convictions each time their licenses are renewed. However, self-reporting may not always occur, and licensing boards do not typically recheck the backgrounds of licensees.

Ideally, periodic criminal background checks should occur for all employees with access to controlled drugs. Some states offer Rap Back enrollment options as an alternative to repeated checks. For example, Ohio offers Rap Back enrollment through the Attorney General’s office for a fee.3 The program is not restricted to personnel caring for vulnerable individuals.

Responsibility for Screening and Record Keeping

The human resources department typically bears responsibility for pre-employment screening. However, staff managing the diversion program must be certain that the scope and method of screening is appropriate to the risk that the employee could create. In most cases, records of all pre-employment screening should be kept for as long as the individual is employed at the facility, and for at least 2 years after termination of employment, consistent with DEA standards for the retrievability of other types of records. Most facilities have implemented standards for the retention of specific types of records; those in possession of screening records should check their record retention policies before purging any records of pre-employment screening.

Obtaining a Waiver

As noted previously, candidates with felony convictions or prior actions against their DEA registrations related to controlled substances may not be hired in roles that involve handling controlled substances. However, a waiver of that prohibition may be requested from the DEA. Requirements for such a waiver are stringent, and entail convincing the DEA that diversion is not a risk in the situation covered by the waiver.4 Clearly, such a waiver is intended for use in unusual circumstances where the benefits of hiring a former diverter outweigh the substantial risks.

Conclusion

Before an employee steps through the hospital’s front door to begin work, pre-employment screening can be a useful tool in an organization’s diversion-prevention armamentarium. Moreover, both pre-employment and ongoing staff screening can play a significant role in a comprehensive diversion program, protecting staff and patients from the harmful effects that occur when diversion occurs undetected. When implementing such a program, a complete understanding of federal and state regulatory screening requirements is a prerequisite to success.

References

1. DEA Code of Federal Regulations: 21CFR§1301.90.
2. New Hampshire Code of Administrative Rules RSA 328-I. NH Rev Stat § 328-I:5 (2015). http://law.justia.com/codes/new-hampshire/2015/title-xxx/chapter-328-i/section-328-i-5. Accessed December 13, 2016.
3. About Rap Back. Ohio Attorney General. https://rapback.ohioattorneygeneral.gov/. Accessed December 14, 2016.
4. DEA Code of Federal Regulations: 21CFR§1307.03.
5. Maryland Department of Health and Mental Hygiene. Public Health Vulnerability Review: Drug Diversion, Infection Risk, and David Kwiatkowski’s Employment as a Healthcare Worker in Maryland (March 2013). http://dhmh.maryland.gov/pdf/Public%20Health%20Vulnerability%20Review.pdf. Accessed December 13, 2016.

Kimberly New, JD, BSN, RN, is the founder of Diversion Specialists, LLC, a consulting service providing solutions for all aspects of institutional drug diversion. She is a specialist in controlled substance security and DEA regulatory compliance, working with health systems across the country to establish and expand drug diversion programs, with the overriding goal of improving patient safety. Kim is also the cofounder and executive director of the International Health Facility Diversion Association.

SIDEBAR
Provide Meaningful References

It is important to note that unless a job candidate has previously been convicted, providing a meaningful reference may be the only way some individuals with a prior history of diversion will be detected. In one diversion scheme that impacted multiple states and patients, the Maryland Department of Health and Mental Hygiene (DHMH) noted that several agencies and facilities that had employed the diverter, and had knowledge of diversion or concerning behavior, did not communicate that information to subsequent employers. Additionally, some former employers gave positive references when there was evidence of risky conduct.

The DHMH observed that providing references to prospective employers requires weighing the risk of potential tort claims by subsequent employers and victims against the risk of a defamation claim by the former employee.5 When references are requested, limiting the information shared to confirmation of dates of employment facilitates the continuation of diversion at other institutions, and makes the previous employer complicit in future patient harm. Facilities should work with their human resources and legal departments to develop a more transparent approach. Providing factual, objective information may help reduce concerns about legal risk.