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The Pennsylvania Supreme Court has ruled unconstitutional part of a state law prohibiting nursing home facilities and home health care agencies that treat the elderly or disabled from employing workers convicted of certain crimes. In Nixon v. Commonwealth of Pennsylvania, the justices concluded 6-1 that part of the Older Adults Protective Services Act infringed upon the plaintiff employees’ right to continue their occupations. The law, first enacted in 1987 and amended in the late ’90s, designated a network of agencies throughout the state to provide people older than 60 with health and welfare services. A 1998 amendment to the law required that job applicants to any facility covered by the law, as well as caregivers who had worked for a facility for less than a year when an amendment to the law took effect, had to submit criminal records for review. The amendment exempted those who had worked for the facility for more than a year. But such a distinction among former criminals failed the constitutional “rational basis test” requiring a real and substantial relationship between it and the Legislature’s interest in protecting the elderly, disabled and infirm, explained Justice Russell M. Nigro in a Dec. 30 opinion. The effect of the amendment was “merely to prohibit the employment of convicted criminals who were not then working in a covered facility or who had obtained a new job in a covered facility less than a year before the effective date of the chapter,” Nigro wrote. But at the same time, the law allowed other convicted criminals who had been working at a facility to stay in their jobs solely because they had worked there for more than a year before the amendment took effect. Many of those employees probably continue to care for the elderly and disabled today, Nigro noted. The five employee plaintiffs who brought suit against the state had either been barred from working in jobs caring for the elderly or been forced to take another job when the amendment to the law took effect because they had been convicted of various crimes years ago, according to the opinion. The Commonwealth Court had granted the plaintiffs’ motion for summary relief in 2001, declaring un-constitutional the portion of the law that required employees to submit criminal records. The state appealed to the state Supreme Court. David J. Wolfsohn of Hangley Aronchick Segal & Pudlin represented the employees and another plaintiff, a nonprofit organization called Resources for Human Development Inc. “With respect to these plaintiffs, the Commonwealth had conceded that they were excellent caregivers,” Wolfsohn said. “This law was designed to protect people in these care facilities, but it would have required the removal of the people who were giving them excellent care. That was a perverse result.” Lawyers for the state had argued that the purpose of the distinction among former criminals was to protect vulnerable citizens from those deemed incapable of safely providing for themselves, according to the opinion. But if that was the goal, Nigro said, then “there was simply no basis to distinguish caretakers with convictions who had been fortunate enough to hold a single job since July 1, 1997, a year before the effective date of the chapter, from those who may have successfully worked in the industry for more than a year but had not held one continuous job in a covered facility” since that date. Nigro assumed that the Legislature’s rationale for this distinction was that those who had been employed for more than a year before the amendment took effect presented less of a risk because they had proven they weren’t likely to harm any patients and had established trust with their employers. But if those employees had proved themselves to be capable of “essentially rehabilitating themselves” so as to qualify them to continue working at the facility, “there should be no reason why other convicted criminals were not, and are not, also capable of doing the same.” Acting Attorney General Gerry Pappert disagreed with the court’s ruling, said his spokesman Sean Connolly. “The law was reasonably related to the legitimate purpose articulated by the General Assembly to protect older and disabled Pennsylvanians,” Connolly said. The Attorney General’s office is still discussing the ruling’s practical effect with the various agencies upon which it would have an impact, Connolly said. Nigro did note that barring certain convicted criminals from working with the elderly and disabled may be an effective means of protecting those patients from abuse, but because the issue of an absolute bar of convicted criminals was not before the court, it did not address it. Chief Justice Ralph A. Cappy, and Justices Ronald D. Castille and Sandra Schultz Newman concurred with Nigro’s opinion but also believed that a lifetime ban on employment for convicted criminals would have no rational relationship to the Legislature’s legitimate goal of protecting the elderly from abuse. Justice J. Michael Eakin dissented, saying that the portions of the law precluding certain convicted criminals from employment at the facilities “precisely effectuate” the government’s interest in protecting the elderly and disabled. “Erecting a hiring roadblock to the inflow of proven criminal offenders is not unconstitutional simply because others already beyond the roadblock were not forced out,” Eakin wrote.

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