RESOLUTION ON THE CRIMINAL RECORDS PROVISIONS OF THE OLDER ADULT PROTECTIVE SERVICES ACT

WHEREAS, in 1997 the Pennsylvania legislature enacted amendments to the Older Adult Protective Services Act ("OAPSA") that prohibited nursing homes and other long-term care facilities from hiring individuals with criminal records; and

WHEREAS, the criminal records provisions of OAPSA were applicable to all job applicants and new employees regardless of the age and circumstances of the conviction, the employment history of the applicant, or other indicia of rehabilitation; and

WHEREAS, many dedicated and qualified care-givers lost their livelihoods because of their inability to find work in their chosen profession, in which many had worked for years; and

WHEREAS, many other individuals who were "grandfathered" by the amendments to OAPSA as long as they remained at the same facility, were unable to change jobs, add part-time work to supplement their incomes or find new employment if they lost their jobs for any reason; and

WHEREAS, the effects of these amendments to OAPSA have been primarily felt by low-wage workers; and

WHEREAS, the prohibition on employing qualified individuals with remote convictions also had a detrimental effect on the ability of nursing homes and other facilities to hire and maintain staff, thereby decreasing the quality of care for older adults served; and

WHEREAS, on December 30, 2003, the Pennsylvania Supreme Court struck down the criminal records provisions of OAPSA as irrational and in violation of due process provisions of the Constitution of the Commonwealth of Pennsylvania; and

WHEREAS, the Pennsylvania legislature and the Governor's office have begun to address ways to remedy the constitutional shortcomings of OAPSA by amendments providing for time limitations on the age of certain convictions that would otherwise result in permanent disqualification, and providing further for an appeals process for health care workers who seek to challenge their disqualification under OAPSA.

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association supports remedial legislation narrowly tailored to address the interests of both qualified health care workers and the vulnerable people they serve, and that recognizes that the age and circumstances of a prior conviction and other indicia of rehabilitation are relevant to the qualifications of health care workers to continue to work in their chosen profession.

AND BE IT FURTHER RESOLVED, that in light of the relevance of such indicia of rehabilitation, the Bar Association supports legislation that includes a 10-year time limitation on the age of a disqualifying conviction, except for the crimes of murder, rape and other sex crimes, or kidnapping, for which no time limitation on the age of a disqualifying conviction would be appropriate.

AND BE IT FURTHER RESOLVED, that the Bar Association supports legislation providing for a hearing process before the Bureau of Professional and Occupational Affairs ("BPOA") for individuals otherwise ineligible to work under the OAPSA provisions to show through appropriate evidence that they are suitable for employment in health care facilities, as determined by BPOA hearing examiners according to set criteria provided in the legislation, and  that further provides that:

(a)  current employees of facilities who have been employed continuously since July, 1997 or earlier and were therefore "grandfathered " in to their positions under the original terms of OAPSA, and who now will apply for certificates of employability pursuant to a new appeals process, remain in their positions, without suspension, pending the conclusion of the BPOA hearings and decision, and

(b)  any fees imposed on applicants for exemptions shall be reasonable and a fees cap be set in the legislation so that low-wage workers will not be deterred from applying for exemptions because of the fees.

AND BE IT FURTHER RESOLVED, that the Chancellor, or his designee, shall take all appropriate steps to communicate this position to appropriate officials in the Pennsylvania legislature and Governor's office.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: FEBRUARY 26, 2004