Legal Q & A: Hiring R.Ph.s, techs: What must you check?

Q: Must pharmacies contact their state boards of pharmacy, DEA, OIG, and other agencies to see if a prospective staff R.Ph. has a license that's in order and has not been excluded from participation in Medicare and state healthcare programs? Regarding technicians, should pharmacies contact the Pharmacy Technician Certification Board to see if the candidate is certified? I've heard that some regional DEA offices will conduct background checks or preemployment verifications free of charge.

A: Many groups now demand background checks for new hires. JCAHO is requiring hospitals to check with state boards about the licensure of their staff. And HHS has called for more effective systems of background checks for individuals seeking employment in nursing homes.

An important element in running a business is the hiring of good employees. A pharmacist who is, because of prior controlled substance convictions, excluded from working in a pharmacy that fills narcotic prescriptions can cost the pharmacy more than the salary paid. The same can be said of a pharmacist barred from Medicare practice.

For any position involving access to Rx and controlled substance drugs, a pharmacist or pharmacy tech may be subjected to even greater scrutiny, e.g., drug screens and credit checks. If you decide to take these steps, however, you must consult an attorney familiar with local, state, and federal employment laws. Most states, some localities, and the federal government limit the means and procedures that are permissible in some of these checks.

Will the DEA conduct background checks or preemployment verifications? Yes, within limits. DEA regional offices will check their records but stop short of conducting a full background check. The DEA publication "Security Outline of the Controlled Substances Act of 1970" is a "must read" when employing professional pharmacy staff. It is on the Internet at http://www.deadiversion.usdoj.gov/. The following is an excerpt from that publication:

In order to fairly assess the likelihood of an employee committing a drug security breach, it is essential that non-practitioner registrants carefully screen individuals before hiring them. Of the utmost importance is a determination of convictions for crimes and unauthorizeduse of controlled substances. To this end, DEA recommends that the following two questions become a part of an employer's comprehensive screening program:

1. Within the past five years, have you been convicted of a felony, or within the past two years, of any misdemeanor, or are you presently charged (formally) with committing a criminal offense? Do not include any traffic violations, juvenile offenses, or military convictions, except by general court-martial. If the answer is yes, furnish details of conviction, offense location, date, and sentence.

2. In the past three years, have you knowingly used any narcotics, amphetamines, or barbiturates, other than those prescribed to you by a physician? If the answer is yes, furnish details.

DEA also recommends that an authorization, in writing, be completed by a person who is allowed to or is considered for work in a controlled substances area. This authorization should permit inquiries to be made of courts and law enforcement agencies concerning pending charges or convictions. Information on employees' criminal records should then be used as follows:

1. Locally by name, date, and place of birth, and other identifying information, inquire at local courts and law enforcement agencies for records of pending charges and convictions; and

2. Nationally by the same identifying information, make an inquiry at the appropriate DEA Field Office.

In addition, preemployment screening should be by written application, which covers such areas as credit checks, residences, educational background, military history, character, reputation, and past employment. All applications should strongly warn that any falsification will result in dismissal and that data will be verified.