Criminal Caregivers

Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees.

But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy. When Pennsylvania amended its protective service law prohibiting long-term facilities from hiring or retaining employees convicted of certain crimes, the state’s Supreme Court ruled it unconstitutional. When New Jersey passed a similar law, over 400 current employees, many of whom had worked for years and were dong a good job, were found to have committed disqualifying crimes.

Keeping patients safe when there’s a critical shortage of workers is a balancing act—one that prompted the Office of the Assistant Secretary for Planning and Evaluation (DHSS) to commission “Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring,” a study, which explores, among other things, the relationship between past criminal background and subsequent abuse. As a member of the project’s advisory committee, I met recently with other members and staff of the Lewin Group, which conducted the study.

It came as no surprise that the preliminary findings affirm a link between criminal history and abuse. After all, an earlier study by Michigan’s attorney general showed that a quarter of CNAs convicted of crimes against nursing home residents had prior criminal backgrounds. But the group also discussed the need for more research on recidivism and the dissemination of existing information to guide hiring decisions. One advisory committee member cited a recent study that suggests that after 7 years, past criminals are no more likely than others to commit new crimes.

The need for more research to guide hiring decisions became clear to me years ago when a worker at an Oregon agency responsible for hiring home care workers told me about a convicted child abuser who, after being denied employment, successfully challenged the decision claiming that there was no empirical evidence to show that persons who abuse children are likely to abuse elders.

In calling for more research, we will find some unlikely allies. These include offenders’ rights advocates, who hope that new studies will create more opportunities for reformed offenders. They argue that the need for research has become particularly critical in light of Internet technology, which has made checking backgrounds easier than ever to obtain. They furhter caution that the rapid growth of the largely unregulated criminal background check industry poses serious threats to offenders' rights.

Ensuring patient safety at home is even harder--home care workers are in even shorter supply and spend significantly more time with elders alone and unsupervised. The popularity of “consumer choice” programs in long term care, some of which permit low income elders to use public benefits to hire workers on their own (as opposed to using licensed agencies), have forced some frail elderly “consumers” to make hiring decisions on their own in a stunted market with inadequate information. These are clearly issues looming on the policy horizon. Hopefully, the DHHS study is just the start. More on consumer choice programs to come.