From the Folks Who Brought You “Friendly Fire”

What do the U.S. military and the long-term care network have in common? It seems we’re competing for the same criminals (reformed, hopefully) to fill critical manpower shortages. In our case, the shortage is for nursing home employees and in-home attendants. In theirs, it’s for soldiers to fight an unpopular war. We’re both struggling with the uncertainties of deciding when past criminal conduct should not stand in the way. The military’s approach is to issue an increasing number of “moral waivers,” which permit would-be personnel who’ve committed disqualifying offenses to serve.

According to a New York Times article that ran last week, the number of moral waivers granted to Army recruits with criminal backgrounds has grown nearly 65% in the past 3 years. Prior to issuing the waivers, the military looks at the nature of the crimes, when they were committed, recruits’ degree of rehabilitation, and references from teachers, employers, coaches, and clergy. The sharpest increases have been for serious misdemeanors, which include aggravated assault, burglary, robbery, and vehicular homicide. In 2006, 11.7% of Army recruits had criminal histories.

In earlier posts, I’ve talked about how, as the pool of long-term care workers is depleted, the number of people with criminal histories being hired by nursing homes and frail elders has gone up (See Criminal Caregivers). In Texas, where people with certain convictions are barred from working in long-term care facilities or home health care settings, employers are provided with reports of all potential employees’ convictions. In 1995, facilities received reports on 3.4% of the potential employees. By 2000, that percentage had risen to 9.1%. A 2005 study of nursing homes in Michigan found that almost 10% of the state’s nursing home employees had criminal backgrounds, which included homicide, criminal sexual conduct, weapon charges, and drug offenses.

Given the current shortages, our network, like the military, has to make allowances. When New Jersey passed a law requiring all home care workers to have FBI fingerprint checks, they discovered that 400 current employees had committed disqualifying crimes. Many had been working for years, and losing them would have dealt a devastating blow to the system. The state sought to get them exempted.

I don’t believe that hiring people with criminal histories is entirely bad. Youthful mistakes don’t make people hardened criminals, and people deserve second chances. The problem is, we simply don’t know much about recidivism and patterns of re-offending. Nursing homes, or worse, the private homes of frail elders, are not exactly ideal venues for finding out (I’ll reserve comment about whether battlefields are).

What we do know about recidivism isn’t reassuring. A study commissioned by the Office of the Assistant Secretary for Planning and Evaluation (DHHS), Ensuring a Qualified Long Term Care Workforce: From Pre-Employment Screens to On-the-Job Monitoring, looked at whether nursing home employees with criminal histories are more likely to commit abuse. They are.

The military has also conceded that they’re having problems. According to the Times, “many criminals have at some point exhibited serious lapses in discipline and judgment.”

Personally, I find the term “moral waiver” offensive. Still, I think our network should consider adopting it. If word got out that nursing homes and home care agencies were issuing "moral waivers" to prospective employees with criminal histories, it might ignite the public outrage needed to get the government to fund critically needed research on recidivism. Perhaps the Army would like to join us in a study.

Feel-Good Laws or Real Reform?

California’s conservatorship reform package, hailed as landmark legislation, was inspired by the LA Times searing report “Guardians for Profit.” The series portrayed private professional conservators, who are subject to less regulation than hairdressers, plundering clients’ estates while judges overlooked incompetence, neglect, and theft. To question conservatorship reform these days is near blasphemy. But are these laws really good policy?

Some of the provisions clearly have merit. One requires professional conservators to be licensed and regulated through the Department of Consumer Affairs. It bears mentioning that the law was sponsored by the Professional Fiduciaries Association of California (PFAC), which had tried for nearly a decade to get it passed. Those in the trade clearly stand to benefit from weeding out their crooked colleagues.

There are also provisions for more frequent court reviews, which also sounds like a good idea. But the cases described in the Times involved situations where individual courts had failed to provide even minimally adequate oversight. Under the new laws, courts may be required to conduct as many as 4 investigations during the first year of a new conservatorship. Wouldn’t it make more sense to address glaring deficiencies before imposing new responsibilities on all courts, including those that have been doing a good job? Not to mention the added costs of all these investigations, which are passed on to conservatees (those who can pay), and the added intrusion into their lives.

The Times reported that LA County's PG turned away 4 out of 5 people referred and took months to act, during which, hundreds of seniors died. As a result, the new law will require PGs to take all appropriate cases and sets deadlines for doing so.

Again, the law seems to make sense, but the issue here is really resources. LA wasn’t providing any funds to its PG, and the new laws don't provide any additional new state funding.

The new laws also fail to address more fundamental issues. A study of conservatorships in San Francisco a few years ago revealed that the PG’s backlog of cases could be accounted for in part by the fact that local nursing homes often refuse to accept impaired elders unless they are under conservatorships, a practice of dubious legality. The PG considers these patients a low priority because they aren't in imminent danger. For the most part, it's the hospitals that are being hurt since patients often remain hospitalized for weeks or months after they no longer require treatment. Patients too may be harmed by these unnecessary stays.

The SF study also found that some cases are referred for conservatorship because doctors are uncomfortable making medical decisions for impaired patients. In these cases, it's the docs who are being protected—against having to make tough decisions and potential liability. Other referrals come from APS on behalf of elders who are gravely disabled or in imminent danger because someone needs authority to assess their needs. In elder abuse cases, referrals are sometimes made to freeze the assets of incapacitated elders when criminals have access to them. I've heard that in another county, conservatorships are often sought simply to enroll incapacitated elders in hospice programs.

These experiences suggest the need to look at the goals and purposes of conservatorship. Conservatorships are to protect elders—not nursing homes or doctors. And, because conservatorship is an arduous process with long-term impact, it’s for people with long-term needs, not as a quick fix. They’re also intended to be used when less restrictive options won’t suffice. The problem is, there just aren’t many alternatives, and those that do exist are either flawed or aren’t being used. They include:

· Probate Code §3200, which allows health and medical care providers, neighbors, and friends to petition courts to order medical treatment (and possibly placement) for impaired patients. The law is not being used widely and its potential applications are unclear.

· Probate Code §2952 provides a means to secure the assets of elderly, incapacitated, financial crime victims. It is currently only being used in a few counties.

· Welfare & Institutions Code §§15703 - 15705.40 provides for “protective custody” of vulnerable persons with cognitive impairments to assess their protective service needs. It too, is only being used in a few counties.

· Health and Safety Code §1418.8 authorizes nursing homes to form in-house interdisciplinary teams to make medical decisions for patients who lack decision-making capacity. The statute has been criticized for its inherent conflicts of interest.

The SF study concluded that a statewide task force was needed to review how these laws and others have been interpreted and implemented across the state, explore best practices in other states, and make recommendations. Needless to say, that hasn’t happened.

Okay, granted, studying problems and developing strategic approaches to solving them isn’t sexy. But it’s what’s needed to produce coherent policy. The other day I came across minutes from a meeting of the State Senate’s “Subcommittee on Aging Elder Abuse Workgroup,” which met for several years to hash out policy. Experts from around the state met in Sacramento at their own expense. Many of the group's ideas were enacted into law and account for California’s strong civil and criminal protections. Unfortunately, staffing for the group, which was imperative to keep it moving and on track, was discontinued.

Today, more than ever, we need groups like these to debate the merits of proposed laws, oversee their implementation, identify problems, and ensure that the problems are ironed out or sent back to the drawing board. Lets face it. Slap-dash approaches only create more problems and stretch scarce resources even thinner.