Nursing homes free to hire applicants with criminal histories; Pennsylvania won't appeal decision striking down law

By Karen Kidd | Feb 4, 2016

HARRISBURG - Pennsylvania will not appeal an appellate court's ruling that struck down a law prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories.

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HARRISBURG - Pennsylvania will not appeal an appellate court's ruling that struck down a law prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories.

After a challenge by five individuals and a nonprofit proved successful at the Commonwealth Court, the plaintiffs' attorney told the Pennsylvania Record that he has been informed by the Commonwealth that it does not intend to appeal to the state Supreme Court.

That means the unanimous Commonwealth Court decision handed down late last year, striking down as unconstitutional the lifetime employment ban declared in the Older Adult Protective Services Act (OAPSA), will stand.

Until that decision, OAPSA was a Pennsylvania law that included a provision that barred covered residential health care facilities from hiring anyone convicted of certain crimes.

"OAPSA’s lifetime employment ban covered a wide variety of crimes, from the most serious all the way down to two theft misdemeanors," said the plaintiffs' attorney, Peter “Tad” LeVan, Jr. of the LeVan Law Group in Philadelphia.

"Library theft, unauthorized use of a computer and theft of an unpublished music were some of the covered crimes."

The difficulty with that is OAPSA "makes no provision for consideration of any other factor, such as the nature of the crime, the facts surrounding the conviction, the time elapsed since the conviction, evidence of the individual’s rehabilitation, and the nature and requirements of the job," Judge Mary Hannah Leavitt wrote for the Commonwealth Court in the opinion filed Dec. 30.

The lifetime ban, Leavitt wrote in the opinion, violates the due process guarantee in Pennsylvania's constitution.

"The statutory ban does not have a plainly legitimate sweep because a substantial number of its applications are invalid, making it unconstitutional on its face," Leavitt wrote

The case was sparked by cases such as those of Tyrone Peake, one of several individuals, along with Resources for Human Development, who joined to challenge the law. Peake, convicted in 1981 for riding in a stolen car when he was 18 but who has had no legal trouble since, found he could not be employed full-time as a caregiver because of his record.

His case was profiled on NPR last spring.

"He served three years of probation without incident and has not been in trouble with the law at any time in the three decades since," LeVan said.

"Before this decision, Mr. Peake was forever barred from working in covered facilities due to the single non-violent incident 33 years ago."

In addition to the Commonwealth forgoing appeal to the Supreme Court, there does not appear to be any nursing homes and other such care providers fighting to maintain the OAPSA lifetime hiring ban.

"To the best of my knowledge, there was no organization or group of care providers that was actively supporting OAPSA’s lifetime ban," LeVan said. "In fact, several care providers supported our first case."

"I think it’s important to note that OAPSA, though well-intentioned, actually stripped any employment discretion from care providers. Even in the absence of the law, care providers will have the benefit of a prospective employee’s criminal history background and can make reasonable employment decisions," LeVan said.

"So the law actually didn’t help care providers; it hamstrung their discretion by creating a lifetime bar without any exemption or exceptions."

However, LeVan said it's unclear whether this decision will lead to more lawsuits by rejected applicants with criminal histories.

"There are similar lifetime bans in other Pennsylvania statutes that could potentially be subject to challenge," he said. "As for lawsuits arising from rejection from a position, Pennsylvania law expressly allows an employer to consider an applicant’s criminal history if it is relevant to the individual’s suitability for the position."

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