Publicly funded programs like In-Home Support Services (IHSS) that provide helpers to assist with such basic daily tasks as eating, bathing, housekeeping, and shopping, are a godsend to people with disabilities who want to live independently. Some of these programs reimburse families for providing care to their own members, buffering them against impoverishment. But the lack of screening and oversight of caregivers, and the unchecked access they have to society’s most vulnerable, have also made caregiving an attractive job choice for opportunists and predators. In some families, the job falls to troubled or dysfunctional members who can’t find other work. As a result, shocking accounts of abuse and neglect by publicly paid workers are hitting the press almost daily. These accounts are even more shocking when it’s revealed that an offender was recently released from prison or is on the lam.
In response, states have enacted criminal background checks. But while there’s general agreement that checks are needed, developing systems isn’t easy, as AARP's excellent new report Developing Effective Criminal Background Checks and Other Screening Policies for Home Care Workers shows. The report raises such complex questions as what crimes should disqualify workers, do we apply the same standards when helpers are family members, how do we ensure fairness, who pays, and how will checks affect an already inadequate supply of workers?
A Survey of State Laws
Although much of the funding for in-home care comes from the federal government, the feds defer to states to develop programs and policies for hiring and screening workers. AARP commissioned the National Conference of State Legislatures to conduct a state-by-state comparison, which revealed widespread variations.
“We were surprised at the wide diversity of provisions on which crimes disqualify job applicants,” says Naomi Karp, Policy Advisor for AARP’s Public Policy Institute, which produced the report. “Some states (including California) only disqualify applicants for past offenses against vulnerable people, while others exclude them for a simple DUI.”Of the 46 states that mandate pre-employment criminal background checks, most disqualify applicants who’ve been convicted of homicides and other violent or sex-related offenses. Some include fraud-related crimes and crimes against vulnerable adults and elders. The laws also vary in terms of which workers are covered. Some, for example, require background checks for family members who receive payment for providing care while others exempt them.
To Work or Not to Work: A Measured Approach
Criminologists, offenders’ rights advocates, and common sense tell us that mitigating factors need to be considered before disqualifying applicants with criminal histories, including their age, the length of time since they committed the crimes, their work histories subsequent to offending, and whether or not they can show they’ve been rehabilitated. Naomi adds,
“Our study identified exciting criminology research on redemption —determining when a person with a criminal history no longer poses a greater risk of committing a crime than anyone else. Professionals in the elder abuse and long-term care fields are unlikely to be aware of this, never mind policymakers.”She further cautions against over regulation.
"Although we need to find ways to protect home care consumers, we also need to avoid unnecessary disqualifications as workforce demand increases and to increase fairness to job applicants.”The report suggests for example that when elders use public funds to hire their own family members to provide their care, the standards should be relaxed. It also acknowledges that in the interest of consumer choice and empowerment, some consumers of home care should be given the opportunity to assume greater risk (as long as they’re capable of understanding those risks).
Let Research Be Our Guide
While researching an article on this topic several years ago, I interviewed criminologist Vernon Quinsey who explained that the point where the risk of re-offending becomes negligible is different for different crimes and different settings. To understand the risk that home care workers with criminal histories will re-offend requires that we study home care workers with histories who re-offend. In other words, our field’s tendency to borrow knowledge from other fields won’t work here. We need our own research.
The report further cautions against over relying on background checks and highlights the importance of detailed application forms with disclosure requirements, thorough interviews, reference checks, drug and alcohol screening, credit histories, and training. Other recommendations include “rap-back systems,” which refers to programs that automatically flag new disqualifying crimes committed by workers after they’ve been hired and alert employers. It calls for a tiered system that begins with low cost checks of state records and registries for all applicants, followed by more extensive checks when the initial checks suggest problems. Screening systems also need to provide for appeals and waivers, or “rehabilitation reviews” to let disqualified applicants demonstrate their suitability.
Surprisingly, background checks may have a powerful deterrent effect. The report cites the findings of a Centers for Medicare & Medicaid Services (CMS) study that shows that while fewer than 4% of applicants in state criminal background check pilot projects were disqualified by checks, close to 19% withdrew their applications before the checks were made.
While AARP has made an enormous first step in tackling this complex issue, many more questions still remain, including:
• How do we decide when elders with cognitive impairments are capable of making hiring decisions? In doing so, we need to acknowledge that hiring is just the first step in a process and anticipate what will happen down the line. Once they hire workers, for example, will impaired elders be able to detect financial abuse, withstand manipulation and intimidation, or even ask for help?
• Will criminal background checks disproportionately affect communities that are overrepresented in the criminal justice system?
• Will policies that give elderly consumers greater responsibility for vetting their own workers carry with them greater liabilities (e.g. for hiring workers who are undocumented)?
The AARP report hasn’t generated as much media attention as expected, which isn’t surprising to me. Accounts of recently released sex offenders getting jobs as home care workers makes for better copy. But the painstaking, thoughtful approach that AARP has taken in this report is invaluable to those who are working on policy. Thanks, AARP!
For copies of the report, see Developing Effective Criminal Background Checks and Other Screening Policies for Home Care Workers
For more on abuse by caregivers and additional resources, visit my Web site at: http://lisanerenberg.com/learn/caregivers.html