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The Pennsylvania Commonwealth Court recently declared that a portion of the Pennsylvania Older Adults Protective Services Act, 35 P.S. §§ 10225.101, et seq. (Act), which prohibited individuals with certain criminal convictions from working in nursing home facilities, is unconstitutional. Peake, et al. v. Commonwealth, 2015 WL 9488235 (Pa. Cmwlth. Dec. 30, 2015).

The Act, passed in 1987, is designed to protect elderly individuals from abuse and neglect in nursing care facilities. The Act was amended in 1987 to add Chapter 5, entitled "Criminal History for Employees."

As originally written, Chapter 5 required all applicants and existing employees of Act-covered facilities employed for less than one year to submit a criminal history report. If the criminal history report showed conviction of a crime fitting into a category of enumerated serious offenses, that individual was banned for life from employment at an Act-covered facility; if the criminal history report showed conviction of a crime fitting into a category of enumerated lesser offenses, that individual was banned for a period of 10 years from employment at an Act-covered facility.

In 1997, Chapter 5 was amended to impose a lifetime employment ban on individuals convicted of both categories of crime (those previously defined as serious and lesser offenses in the 1996 amendments), as well as to impose a lifetime ban on individuals convicted of two or more misdemeanor offenses from a third enumerated list. In other words, the 1997 amendments significantly broadened the list of covered offenses and imposed a lifetime ban (rather than a time-limited ban) for all individuals convicted thereof.

The 1997 amendments to Chapter 5 were first challenged in Nixon v. Commonwealth, 789 A.2d 376 (Pa.Cmwlth. 2001) (Nixon I). There, the petitioners were convicted of offenses that would not have triggered a lifetime ban under the 1996 amendments, but that did trigger a lifetime ban under the 1997 amendments. The Nixon I petitioners argued that the lifetime ban violated their constitutional due process rights. The Commonwealth Court agreed, holding that the 1997 amendments were unconstitutionally arbitrary and irrational.

The Pennsylvania Supreme Court affirmed Nixon I, but for different reasons, in Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) (Nixon II). Instead of holding that Chapter 5 was facially unconstitutional, as the Nixon I Court had determined, the Nixon II Court took issue with the fact that individuals employed at an Act-covered facility for more than one year prior to the passage of the 1997 amendments, but who had been convicted for lifetime ban-triggering offenses, were permitted to continue their employment. Consequently, the Nixon II Court declared Chapter 5 unconstitutional, because it was not rationally related to the State’s interest in protecting elderly individuals.

In response to the Nixon II decision, the Commonwealth Department of Aging issued an Interim Policy, stating that, until passage of new amendments to Chapter 5, individuals found to have been convicted of a covered crime were banned from employment for five years after the latter of the individual’s conviction or release from prison. The Interim Policy continued to direct covered facilities to require employees employed for less than one year and new applicants to undergo criminal background checks (i.e., it did not require covered facilities to perform criminal background checks on all current employees).

Surprisingly, in the 12 years since the Nixon II decision, Chapter 5 of the Act was never amended and covered facilities have continued to apply the Interim Policy. In Peake, however, five individuals and one non-profit organization again challenged the constitutionality of the lifetime ban imposed by the still-applicable 1997 amendments to Chapter 5 of the Act.

The Peake Court applied the "plainly legitimate sweep" test, whereby "a statute is facially invalid when its constitutional deficiency is so evident that proof of actual unconstitutional applications is unnecessary." The Court observed that, although the Commonwealth has the ability to limit individuals' rights by passing laws that protect the public health, safety and welfare, such laws must be reasonably related to those legitimate interests.

Applying this test, the Court found that Chapter 5, as currently written, makes no allowance for fact-specific inquiries when an individual is found to have been convicted of an enumerated crime and, further, does not state a legitimate reason for permitting individuals convicted of those same crimes, but employed by an Act-covered facility prior to July 1, 1998 (i.e., one year prior to the effective date of the 1997 amendment), to remain so-employed. As such, the Court concluded that Chapter 5 is not reasonably related to protecting older adults and is unconstitutional on its face.

The Court also found the Commonwealth’s argument that the Interim Policy placed a time-limit on the ban unavailing, inasmuch as the Commonwealth could abandon the Interim Policy at any time and the Interim Policy was not legally binding.

Facilities covered by the Act should cease to rely on Chapter 5 to automatically deny employment to employees convicted of the enumerated crimes. Instead, such facilities must now conduct a fact-specific inquiry of employees and applicants convicted of the enumerated crimes to determine whether the criminal conviction is reasonably related to the individual’s ability to perform his or her essential job functions.