Ray’s Round Up: Constitutionally of Hiring Paid Caregivers with Criminal Histories - a Dilemma for Pennsylvania Lawmakers

Determining the amount and type of care needed for a loved one is one of the most difficult and gut-wrenching decisions a family must make.  When someone is in need of help or long-term care, numerous factors must go into the decision.

Is a family member available and willing to become a caregiver?  Is the caregiver able to handle physical effort that may be necessary?  Is it affordable to employ someone to help?  Where can a family find someone that will help?  And how can they find someone who is trust-worthy enough to care for their loved one?

It is that last question that is challenging policy makers and advocates in Pennsylvania today.  In 1998, responding to incidents of abuse by hired caregivers, Pennsylvania passed a law that required criminal background checks for individuals hired by facilities or agencies to provide care.  This included nursing homes, home health agencies, hospice facilities, personal care homes, and several other facilities.  The law further stated that if the criminal background check revealed a prior conviction on a prohibited offenses list of over 50 crimes, the prospective employee could not be hired – amounting to a lifetime ban on employment in this line of work.  This law became known as the Older Adults Protective Services Act.

The intent of the law was to give peace of mind to families.  One of the results of the law, however, was that employees of these facilities and agencies went through criminal background checks and some lost their jobs because of prior convictions – in some cases for minor offenses that had happened many years ago.  Their employer had no choice under the law but to fire them, even if their work history had shown them to be fit for the job.

A number of employees who lost their jobs sued the Commonwealth of Pennsylvania, stating that under the Constitution they had the right to work.  In 2003, the Pennsylvania Supreme Court ruled in favor of these employees. The PA Supreme Court stated that if they had been working in good standing at a covered facility or agency after their conviction, they had shown they were capable of rehabilitating themselves.  This case, however, applied only to the employees who had brought the suit and did not cover anyone who was not already an employee of a facility or institution.

After this decision, the Pennsylvania Department of Aging issued guidelines stating that facilities or agencies could employ individuals who demonstrated rehabilitation and had an incident free work history for five years.  The Department anticipated the General Assembly would address the situation with further legislation.

After 12 years with no legislative action taken, another case came before the Pennsylvania Supreme Court in December of 2015. This case was filed by individuals who were denied employment because of a prior conviction who had never worked in a facility or agency, unlike the earlier case where individuals were already employed in the industry. And once again the Court ruled in favor of the prospective employees, stating that a lifetime ban on employment was “unnecessarily broad and facially unconstitutional.”  The Court further stated that “facilities should not be required to employ a person with a criminal record, but they should have the opportunity to assess the situation and exercise their discretion”

So what does this all mean for families and individuals looking for help in caring for a loved one?  At this point, families must rely on the good judgement of the facility or agency they are working with to hire responsible, trust-worthy employees.  Facilities and agencies are still required to complete background checks, but they have discretion when it comes to choosing who to hire.

Meanwhile, the latest Supreme Court case has intensified the need for legislative action.  Elected officials are considering a new law that would institute differing lengths of employment bans for different offenses.  For example, a conviction of someone for shoplifting when they were 18 years old, which under the old law would have been a lifetime ban from employment in this field, might now be a ten year ban with evidence of rehabilitation.  On the opposite side of the spectrum, a conviction of aggravated assault might carry a 50 year ban.

Families need assurance that their loved ones are protected from potential harm, but our criminal justice system is predicated on rehabilitation, and the Court has ruled this must be factored into any new law.  In addition, facilities and agencies face workforce issues that are exacerbated by lifetime bans for offenses that may have taken place long ago and for which restitution has been paid and rehabilitation has taken place.

Advocates for older Pennsylvanians, including AARP, are deeply involved in working with elected officials create new laws to address these Court decisions.  It is likely that the General Assembly will  discuss this issue when they return to session in September.  Families facing decisions about the care of their loved ones deserve quick action on this situation, and it would be best for the Assembly to address the matter swiftly.

 

“Ray’s Round Up” features updates on current state and federal issues by Ray Landis, AARP PA’s Advocacy Manager.