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Q&A on Legal Considerations for Community Health Workers and their Employers

posted on Thu, Feb 28 2019 9:38 am by The Network for Public Health Law

For decades, community health workers (CHWs) have improved access to health in underserved communities across the globe by helping to make health care and public health prevention efforts more accessible and culturally relevant to their communities. CHWs are defined by their membership in and/or trusted relationship with the communities they serve.  They serve as a link between community members and the health and social service systems with which community members interact.

CHWs are not new to public health and health care settings, but growing recognition of their unique ability to help address social determinants of health has given rise to an influx of opportunity for CHWs. Accompanying this professional growth is an evolving area of legislation and regulation as well as legal considerations for employers as they integrate CHWs into their workforce.

Heather McCabe and Network Senior Staff Attorney Colleen Healy Boufides, have written a Network brief that details legal issues that may be of interest to CHWs and their employers.  The authors comment on some of the key issues addressed in the brief in this Q & A.

Q. Certification is a legal mechanism often discussed among community health workers. What is involved in certification and how might it affect the CHW profession?  

Professional regulation in the United States occurs at the state level and may be implemented through a number of different frameworks including licensure, certification, or registration. Certification is the framework often explored for community health workers because it can help to increase public understanding of the CHW role and promote sustainability of often grant-funded positions, yet it does not legally restrict entry to the field. Within a certification framework, a state generally requires members of an occupation to meet specified standards in order to use a particular title (e.g., certified community health worker), but does not exclude noncertified individuals from performing the occupation’s functions. Certification standards may include education or experience requirements and may specify the range of functions that a certified practitioner is deemed competent to perform. 

This issue brief describes different approaches that states may use to support the CHW profession. For policymakers and employers seeking to influence CHW policy in their state, it is important to keep in mind that meaningfully involving CHWs in creating policies that affect their profession is recognized in the field not only as a best and necessary practice, but also as a value core to the CHW profession. 

Q. Are there any unique legal issues that CHW employers should consider?

CHWs can be strategically employed in a variety of settings, including hospitals, clinics, health departments, community-based programs, and Medicaid managed care entities, among others. Though there are liability and other risks in any employment situation, CHWs are unlikely to bring a heightened risk to employers. They do bring skills uniquely suited to increase positive health outcomes, particularly for underserved populations.

The core of the CHW profession is not clinical in nature. Often CHWs perform a range of non-clinical functions in their communities such as conducting outreach, improving health literacy, and linking clients to services (see the 2016 Community Health Worker Core Consensus (C3) Project Report for a description of ten roles commonly performed by CHWs). Though some CHWs may provide limited direct health services, such as checking blood pressure, they are not clinical providers and thus generally do not expose employers to the medical malpractice risks that accompany clinical providers. One way that employers can manage their risk of exposure to liability is by providing appropriate supervision and ensuring that CHWs, their supervisors, and CHWs’ team members understand CHWs’ scope of practice and only ask and expect CHWs to perform functions within that scope.

One unique issue that CHW employers often raise relates to hiring. A core quality of a CHW is membership in or close connection to the community served.  Some employers are concerned about violating discrimination laws when working to ensure community membership. To assist in meeting legal obligations while assuring that the community membership requirement is met, employers may wish to develop recruitment criteria that are specific to each CHW role. They may also find it helpful to work with organizational risk management to develop hiring, supervision, and other policies that will facilitate employment of qualified CHWs.

Additional legal and practical considerations for employers are explored in the issue brief, including billing mechanisms employed in different states as well as strategies for protecting CHWs while they are working in uncontrolled environments.

Q. What other resources may be useful for learning more about the CHW profession and relevant laws?  

A number of useful resources are cited throughout the issue brief. These are a few key resources that may be helpful for getting started:

 

The Network provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation.

For legal advice, readers should consult a lawyer in their state. Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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