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Criminal background alone is insufficient
Hospices place a great deal of responsibility on their volunteers. Those whose charity is their time and compassion often provide in-home care to patients and family with little or no supervision. But do hospices really know enough about their volunteers to entrust them with such important tasks?
Probably not. With competition for volunteers so fierce and the work so challenging, many hospices find it difficult to turn volunteers away, instead opting to find jobs suitable to their talents.
That’s fine, says John Patterson, senior program director for the Non-Profit Risk Management Center, a Washington, DC-based organization that provides assistance and resources on a variety of risk management, liability, and insurance issues. If, however, a volunteer is being asked to go into the patient’s home unsupervised, a thorough screening of the prospective volunteer must be done, he says.
The safety of patients and their families is at stake. It would be easy for a predator to take advantage of the trusting relationships that hospice workers and volunteers develop with the patient and family. Failing to screen new volunteers adequately also leaves a hospice vulnerable to a lawsuit if a volunteer harms a client.
The basic legal standard that applies to employee screening is reasonableness under the circumstances, says Patterson. If a hospice’s screening process is challenged in court, a judge or jury will evaluate the reasonableness of the process the organization used to disqualify unfit people from serving its patients.
A court also will consider whether the organization knew or should have known of the risk of harm and whether the screening process, or lack of it, caused or contributed to the harm. In short, failing to conduct any screening may be considered unreasonable, which can lay the groundwork for an unfavorable judgment.
"Every nonprofit organization is responsible for taking reasonable measures to protect service recipients from harm," says Patterson. "This responsibility extends to all facets of a nonprofit’s interactions with its clientele.
"While not a panacea, careful screening of the paid and volunteer staff who work with vulnerable populations is an important risk management strategy. The failure to adequately screen applicants may place service recipients in dangerous situations. Checking the criminal history records of applicants is one valuable tool in a comprehensive screening process," he explains.
Volunteer screening includes interviewing the potential volunteer, checking his or her background, and training. Depending on the job a volunteer is being asked to perform, hospices may wish to make the screening process less intensive for those who would be doing in-office administrative work and more thorough for those who would have direct contact with clients.
The first part of the screening process is the application, which is followed by an interview. A volunteer’s entrance into the hospice work force should be largely similar to that of a paid hospice worker. Volunteers should be required to complete an application that asks for references and if the prospective volunteer has ever been convicted of a criminal offense.
Further, hospice administrators must make a priority of checking the references and verifying the information on the application, rather than just confirming references from time to time. By making this a hospice policy, those in charge of recruiting volunteers would be encouraged to follow the practice consistently.
While the application allows volunteers to self-disclose past offenses, it is not unreasonable to assume that prospective volunteers might withhold information, which makes it necessary to consider doing criminal history checks.
But before incorporating criminal history checks into the screening process, a hospice must establish clear guidelines stating which offenses are relevant, which ones will disqualify an applicant, what other factors will be considered, and how the rights of the applicant will be preserved. These screening criteria should be applied both to offenses disclosed in the application and those revealed through criminal background checks.
Patterson warns hospices not to rely too much on criminal background checks, but instead to focus on the larger picture painted by the entire screening process. At the same time, hospices must be aware of the risk of not doing these checks.
"Think of yourself sitting on the witness stand trying to explain why you didn’t do a criminal background check," he says.
Because criminal background checks in most states are not free, hospices might want to limit the use of criminal history record checks to positions that call for direct contact with children and elderly people.
When establishing screening criteria, organizations must take into account state and local laws and regulations. Some states have screening or licensing requirements for people who have substantial contact with children or other vulnerable individuals, such as elderly and disabled people. State-specific requirements might include specific offenses that automatically disqualify applicants for some assignments. Absent of specific requirements, however, crimes against persons, such as sex-related crimes, battery, burglary, and robbery — felony or misdemeanor — should be cause for disqualification, Patterson says.
If a hospice serves children or places volunteers in homes where children are present, potential volunteers should be permanently disqualified if their criminal records include any of the following:
• past history of sexual abuse of children;
• conviction for any crime in which children were involved;
• history of any violence or sexually exploitive behavior.
Besides offenses cited in state-specific regulations, other offense should be included in the screening criteria be based on the relevance the offense has to the volunteer position, Patterson says. For example, a volunteer with a history of drug-related offenses may feel tempted to steal prescription drugs from the home of a patient.
The more specific the criterion, the more useful it is for screening, Patterson says. Specific offenses pinpoint the areas of concern and do not unnecessarily disqualify applicants. Some organizations include broad categories of offenses in their lists of disqualifying offenses, such as drug-related offenses. This category encompasses everything from a single misdemeanor possession of less than an ounce of marijuana to felony drug racketeering. Hospices should consider narrowing their categories to target specific relevant offenses committed within a defined time period.
There are other factors to consider, as well. Patterson points to the following factors that he says should be considered together, rather than individually:
• The age of an individual at the time of the offense. In some states, juvenile records will not be available because they are protected by confidentiality laws.
• Societal conditions that may have contributed to the nature of the conduct. While societal conditions should not serve to excuse illegal behavior, the context in which the illegal behavior occurred might be considered.
• The probability that an individual will continue the type of behavior in question. Criminal history records that document a continuing pattern of repeated criminal offenses provide justification to believe that the individual represents a high risk for future criminal conduct.
• The individual’s commitment to rehabilitation and to changing the behavior in question. When an applicant has a criminal history record that includes potentially disqualifying offenses, the organization may consider the steps the applicant has taken toward rehabilitation.