Mandatory Criminal Background Checks for Many PA Healthcare and Social Services Employees Struck Down as Unconstitutional

The Pennsylvania Commonwealth Court's December 11, 2001, decision in Nixon v. Department of Public Welfare will likely change the hiring process of certain healthcare and social service facilities covered by the Older Adults Protective Services Act ("OAPSA") which include personal care homes, long-term care nursing facilities, older adult daily living centers, domiciliary care homes, home health care agencies and agencies which provide care to care-dependent individuals in their residences. In a 5-2 majority ruling, the Commonwealth Court held that certain provisions in OAPSA requiring mandatory criminal background checks and barring the hire of employees with criminal records for certain offenses violate the Pennsylvania Constitution.

OAPSA was originally enacted in 1987 to establish a program of protective services for the elderly in Pennsylvania. Act 169 of 1996 added a new chapter that listed specific felonies and misdemeanors and prohibited individuals convicted of any of those offenses from employment in the facilities listed above for either ten (10) years for certain offenses or for a lifetime for other offenses. Act 13 of 1997 further amended OAPSA to add to the list of specified offenses that would prohibit employment and replaced the ten (10) year ban on employment for some offenses with a lifetime ban for those convicted of any of the specified offenses.

The Petitioners in Nixon challenged these OAPSA provisions for three reasons:

it places no time limits on convictions;
it extends to all positions at a facility with no exceptions; and
it includes no procedural protections for assessing potential employees on a case-by-case basis.

The Department of Public Welfare, the Department of Aging and the Department of Health ("Respondents") argued that OAPSA, like all legislation passed by the General Assembly, must be presumed to be constitutional and that OAPSA provides adequate due process rights.

In her majority decision, Judge Doris Smith closely examined the facts which "validly illustrate the constitutional infirmities present in Act 13 and the draconian impact of its enforcement" surrounding three of the Petitioners:

Earl Nixon who had 10 years of experience as a caregiver at a care facility for the mentally ill, had obtained his personal care administrator's license, but after ending his job at an assisted living facility was barred from future employment in a covered facility due to a 30-year-old conviction of marijuana possession;
Reginald Curry who had 7 years of experience working with delinquent youth at a residential facility, but who was terminated due to a 29-year-old conviction of larceny for stealing $30; and
Marie Martin who had 12 years of experience as a phlebotomist providing services to various nursing homes, but she also was terminated due to a 27-year-old conviction for her role in an armed robbery.

Because each of these Petitioners were either seeking new employment with an OAPSA-covered facility or had been employed for less than a year with a new facility, Act 13 barred their employment despite the fact that the Respondents even agreed that "Petitioners would make excellent care workers for older Pennsylvanians."

The Court found that Act 13 violates Article I, Section 1 of the Pennsylvania Constitution which states: "all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." The Court adopted the reasoning of the Pennsylvania Supreme Court that this section of the Pennsylvania Constitution "guarantee[s] an individual's right to engage in any of the common occupations of life." In making its ruling under facts where the prior convictions do not in any way reflect upon the individual’s present ability to perform the job, that Court quoted from an earlier holding of the Pennsylvania Supreme Court "[t]o forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation."

Although the Court's holding specifically states that the criminal records provision of OAPSA are unconstitutional as applied to Petitioners, the Respondents have interpreted the decision to apply to the hiring practices used by all covered facilities with respect to new applicants.

Pennsylvania Attorney General Mike Fisher filed an appeal with the state Supreme Court on January 9, 2002 to challenge the Commonwealth Court's December 11, 2001 decision in Nixon. In defending the employment prohibition provisions of OAPSA, the Attorney General stated, "[t]he General Assembly passed this law in an effort to protect some of our most vulnerable citizens from those who would prey upon them. Elderly citizens are at risk of being targeted by criminals seeking to steal their money or physically harm them. This law was designed to shield older Pennsylvanians from those who were already convicted of crimes." The Attorney General also said, "[w]e in state government have a duty to protect the health, safety and welfare of our older citizens who live in nursing homes or are disabled. This law prohibited convicted criminals, including those convicted of murder, rape or incest, from working with the elderly in those facilities."

The appeal, which was filed just one day before the January 10 deadline, will automatically supersede and block the implementation of the Commonwealth Court's Order while the case is under appeal to the Pennsylvania Supreme Court. Community Legal Services, which represents the Petitioners in this lawsuit, is considering whether it will file a motion with the Commonwealth Court to vacate the automatic supersedeas that could, if granted, allow the Commonwealth Court's Order to continue in effect during the appeal.