The Commonwealth Court in the case of Tyrone Peake et al. v. Commonwealth of Pennsylvania has invalidated a provision of the Older Adults Protective Services Act. The Act bars individuals accused of serious crimes, such as murder and rape, from being employed in health care facilities like nursing homes, which provide services to the elderly and infirm.
By way of brief background, the 1997 provision of the Act required employees with less than one year of employment at a facility be terminated as a result of a disqualifying conviction. However, employees with a longer period of service were permitted to remain employed. There was a constitutional challenge to the provision, and in 2003 the Pennsylvania Supreme Court ruled the ban irrationally permitted employees with more than a year of service to remain in their jobs despite past convictions, while barring employees who had less than a year of service from remaining employed. Interestingly, the 2003 decision noted that an employment ban in certain circumstances could serve the government’s interest in protecting the elderly population.
After the 2003 ruling, the Pennsylvania Department of Aging adopted an interim policy, in anticipation of legislative action, which permitted individuals with otherwise disqualifying criminal convictions to become eligible for employment in elder care facilities by working five years in the dependent care field. The Pennsylvania Legislature never took action repealing the employment ban. Consequently, the Peake lawsuit was filed. The Commonwealth argued in Peake that the interim policy was sufficient because it provided a way for applicants to become employed at Act-covered facilities. However, the court rejected that argument, stating that the Department of Aging policy was not legally binding and could be changed at any time.
This decision further complicates the landscape of conflicting ban the box laws, state laws, and the Patient Protection and Affordable and Care Act Section 6201, which created the National Background Check Program to help long term care providers establish “efficient, effective and economical procedures” for background checks in long term care and similar facilities. Long term care employers must have familiarity with the interplay between the employment laws and health care laws, and be aware that blanket prohibitions on employing individuals with certain convictions, even in health care settings, is being called into question and can result in legal action.
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