Monday, January 12, 2004

By Gary Rotstein, Pittsburgh Post-Gazette

Earl Nixon had to leave Pennsylvania to work with the elderly several years ago because of a marijuana conviction from three decades earlier.

Now the former Brookline resident may be able to return from Michigan and, along with many other past criminals who can show rehabilitation, get a job in long-term care for the first time in years.

The Pennsylvania Supreme Court, on Dec. 30, found that a state law, which became effective in 1998, was unconstitutional. The court called the law's provisions irrational and said the sweeping ban on workers with criminal pasts couldn't be enforced against Nixon and four other plaintiffs in the case.

The decision has the Rendell administration, lawmakers and the care providers scurrying to figure out the implications for countless other people with old police records and interest in the elder-care field, where a worker shortage continues. Nothing yet says nursing homes and other employers can begin hiring those individuals, but that could change soon.

Legislators involved in developing the law, viewed as perhaps the strictest of its kind in the country, say they're crafting a new version that acknowledges people who committed nonviolent crimes as young adults may mature to become trustworthy caretakers of vulnerable citizens.

"I don't know if you could ever protect seniors too much, but perhaps we don't want to punish somebody for a crime like misdemeanors from 30 years ago," said Rep. Patricia Vance, R-Cumberland, author of the restrictions in the state's Older Adults Protective Services Act. She said there have been "anguished cries from nursing homes" that the ban took punishment too far for workers' past mistakes.

The law barred nursing homes, personal care homes, mental retardation residences, home health agencies and other providers from hiring anyone with a criminal record that included almost any felony or with multiple misdemeanors of certain kinds, such as theft. Legislators passed it unanimously as a protective step for the vulnerable elderly, with no one offering debate on behalf of the affected workers with prior convictions.

Unlike most states with similar laws, Pennsylvania applied the standard to crimes committed at any time in the person's life. When the law was originally approved, it applied only to convictions in the past decade. Legislators revisited the time-frame issue before the law took effect, however, extending it to a lifetime ban.

Also unlike many states, Pennsylvania has had no appeals process, by which someone could seek a waiver by showing past conduct had nothing to do with present worthiness.

The only exception to the state law's hiring restrictions was for an individual who had been with the same employer for a year or more. He could keep working with that employer, whatever he'd done in the past, but if he left for any reason, he faced the same bar as others to new jobs.

Philadelphia-based Community Legal Services sued the state in 2000 on behalf of a group of five workers, including Nixon, who were viewed as optimum challengers because their past offenses hadn't prevented them from becoming model employees or caregivers before the law took effect.

Nixon, now 52, was arrested for marijuana possession in Shadyside when he was 19. Before the law took effect, he had worked in various long-term care settings, managing housing for the elderly and for individuals with mental retardation. Once he left his last Pennsylvania employer in 2000, he was forced to relocate to Belleville, Mich., where he manages a church-owned senior housing residence.

A Philadelphia agency joined the lawsuit because it had to lay off workers it needed who had served clients well, and associations representing elder-care providers filed briefs endorsing the plaintiffs' case.

Commonwealth Court found the law unconstitutional in December 2001, deeming it too sweeping in failing to recognize the possibility of rehabilitation. The state attorney general's office appealed the decision to the top court.

In its ruling two weeks ago, the Supreme Court likewise called the law unconstitutional but for a different reason: The grandfather clause providing an exemption for workers who had spent a year with the same employers suggested they posed less risk to their vulnerable patients or clients than did other individuals who might have switched jobs. The court called that distinction unfair.

Janet Ginzberg, a Community Legal Services attorney, said the effect of the ruling should be the same regardless of its basis:

"It sends a strong message to the Legislature that these criminal record provisions are irrational as written, and they have to go back to the drawing board.

"Our hope is to bring some recognition that the need to protect the [vulnerable] population can be balanced with the right of ex-offenders to seek employment and become productive members of society," Ginzberg said.

Provider groups have raised concerns about the law since its passage, considering their ongoing struggles to hire sufficient numbers of quality workers. The court rulings gave added credence to their case with lawmakers.

"If someone committed elder abuse, that ought to ban you from being paid to take care of seniors," said Alan Rosenbloom, president of the Pennsylvania Health Care Association. "But if you were convicted of kiting checks when you were 20, that doesn't seem like it should necessarily bar you forever from caring for older people."

Vance and Sen. Jane Orie, R-McCandless, who is chairwoman of the Senate Aging and Youth Committee, are preparing versions of legislation to address the issues raised by the state courts and seek a balance between employment rights and protection of the elderly.

Joanne Marino McGreevy, executive director of the Senate committee, said Orie's bill will include some kind of hearing panel for individuals to make their cases that they should be accepted in the field. Vance also wants to draw a distinction between seriousness of crimes, with some like shoplifting only being relevant if they occurred within the past 10 years, and others like rape amounting to a ban whenever they occurred.

Before the Legislature can enact anything, which typically takes months at the quickest, employers are looking to the Rendell administration for guidance on how to handle the issue. One of the muddying aspects of both court rulings is they specifically addressed the case of the five named plaintiffs, rather than all past criminals who could fall into the affected category.

Kate Philips, a spokeswoman for the governor's office, said lawyers for the departments of Aging, Health and Public Welfare hope to produce a decision within weeks on if and how the employment restrictions will be enforced until a new law is enacted.

For Nixon, nothing will change immediately. He said he wants to return to the Pittsburgh area to be close to his older relatives and to run a personal care home, as he did previously for UPMC Health System's senior housing program.

He will have to take courses in the meantime to be recertified as an administrator in Pennsylvania. Nixon said that's the kind of obstacle he can accept, unlike one tied to an arrest for use of an illegal substance that was fairly common among people his age at the time.

"I understand the government's desire to protect the vulnerable population, but obviously, I don't believe that just because you may have made an indiscreet decision sometime in your youth, it should identify you as a predator," Nixon said.

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