CFPB Addresses Background Check Accuracy

Effective as of January 23, 2024, the CFPB issued an advisory opinion addressing issues in background check reports, which are used by most employers and landlords to screen workers and renters.

About forty-five states now allow people to expunge, seal, or set aside certain convictions in some circumstances, but background check CRA’s sometimes include these records in consumer reports they provide to employers and landlords.

The CFPB advisory opinion states that background reports should not contain records that have "been expunged, sealed, or otherwise legally restricted from public access” and that a CRA violates § 1681e(b) if it fails to follow reasonable procedures to prevent such records from appearing in consumer reports. FCRA Background Screening AO, 89 Fed. Reg. 4171, at 4172 (Jan. 23, 2024).

These laws are intended to give consumers a new start and recognizes that lingering criminal records hinder a consumer from housing, jobs, and economic stability.

Outdated Records

A common error in background reports is the CRAs’ failure to update public records information, resulting in the reporting of outdated records. This often occurs when the CRA fails to purchase updates from public record vendors or reliance on automated record scraping that ignores developments in a legal case. The CFPB advisory notes that these practices violate the FCRA. A CRA must have reasonable procedures to include “any existing disposition information if it reports arrests, criminal charges, eviction proceedings, or other court filings.”

Duplicate Records

Background reports commonly contain multiple entries for the same criminal case. Duplicate entries are because the CRA or its vendor obtains information from multiple sources. The CFPB advisory opinion requires that, when a CRA reports multiple stages of the same court proceeding, “it must have procedures in place to ensure that information regarding the stages of these court proceedings (such as an arrest followed by a conviction) is presented in a way that makes clear the stages all relate to the same proceeding or case and does not inaccurately suggest that multiple proceedings or cases have occurred.” If duplicate records caused by a CRA collecting information from multiple sources, the CRA “must take particular care to identify information that is duplicative to ensure that information is accurately presented in consumer reports.”

Seven Year Reporting Period

The FCRA limits the reporting of most adverse information to seven years (Section 1681c(a). The exceptions are for bankruptcies, which can be reported for ten years and criminal convictions which can be reported indefinitely. Arrests, criminal charges, and eviction cases are subject to the seven-year limit. A CRA cannot report an arrest for up to seven years from the date of dismissal, rather than from the date of the arrest record.

The CFPB Continues to Propose a Rule to Ban Medical Debt

The Consumer Financial Protection Bureau (CFPB) has proposed a rule to ban medical debt from credit reports. This has led to frustration among collectors and financial services firms. The proposal aims to help families recover from medical crises, prevent debt collectors from coercing people into paying bills they may not owe, and ensure that creditors do not rely on data that is often inaccurate. The CFPB's research shows that medical debt has little predictive value in credit decisions, and the data inaccuracies in medical debt reporting can erode the utility of the credit reporting ecosystem. Some collectors have already been moving away from reporting medical debt to credit agencies due to concerns about data integrity and their ability to comply with the Fair Credit Reporting Act

Consequences

The potential consequences of the CFPB's plan to ban medical debt from credit reports are a subject of debate. Collectors and financial firms claim that the proposal would restrict lending, raise borrowing costs, and result in more denials of credit to consumers. They argue that hiding medical debt from credit bureaus would further reduce credit scores' utility as a proxy for a borrower's ability to repay, which they believe doesn't benefit anyone.

The potential consequences for consumers are still uncertain and will likely depend on the outcome of the CFPB's proposal and any subsequent changes to the credit reporting system.

Arguments

The arguments against the CFPB's plan to ban medical debt from credit reports are primarily related to the CFPB's funding structure and the potential impact on the credit reporting system. The CFPB's funding mechanism, which allows it to request funding from the Federal Reserve instead of Congress, has been the subject of a legal challenge. Critics argue that this funding structure insulates the CFPB from congressional oversight and that the agency's actions, including the proposed rule on medical debt, could be called into question if the funding mechanism is found to be unconstitutional.

Efforts

CFPB research found that 58 percent of all third-party debt collection tradelines were for medical debt, making medical debt the most common debt collection tradeline on credit records in 2021. Last March, the big three credit reporting conglomerates, Equifax, TransUnion, and Experian, announced that they would stop reporting some, but not all, medical bills on an individual’s credit report. Large credit scoring companies are moving to models that completely or partially exclude medical bills, though many creditors still rely on older models that haven’t made that shift. VantageScore, an entity owned by the conglomerates, has stopped using medical debt in its scores entirely.

Last April, Vice President Harris launched an all-of-government effort to address the burden of medical debt, and to increase consumer protections around billing and collections. At the time, the Consumer Financial Protection Bureau issued a bulletin to prevent unlawful medical debt collection and reporting in light of the No Surprises Act. The CFPB has taken many steps to ensure that patients are not being unfairly treated, particularly when it comes to coercive credit reporting and collection tactics.

Rohit Chopra, director of the Consumer Financial Protection Bureau, continues to defend the agency's proposal to prevent credit bureaus from considering medical debt in consumer credit scores