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Mental Retardation Update #04-07
February 27, 2004

PA Supreme Court
The Pennsylvania Supreme Court on a 6-1 decision (Nixon v. Commonwealth) stated that the grandfather clause in the Older Adults Protective Services Act (OAPSA) - Act 13 of 1997- infringed upon a person’s right, granted by the Constitution, to pursue an occupation and did not bear upon the legislature’s goal of protecting the elderly and disabled from being victimized. The House Aging and Older Adult Services Committee held an information briefing to address the controversy of Sections 502 and 503 under Chapter 5 of Act 13, requiring mandatory background check of an applicant’s criminal history and imposing a lifetime ban from prospective employment.

Representative Patricia Vance (R-Cumberland) has introduced House Bill 2315 to address Constitutional faults found by the PA Supreme Court in the current law. This bill would change the current lifetime ban to a limited 10-year ban applicable only to a specific set of criminal offenses dealing with crimes against people as opposed to property. There would be an appeals process for employees and applicants denied work.

Representative Mike Veon (D-Beaver) has introduced House Bill 2360 that offers amendments to Act 13 Chapter 5 regarding criminal history for employees. Lifetime disqualifications and ten-year disqualifications are listed. This bill would establish a Long-Term Care Employment Review Board with responsibility for establishing rules and regulations for review of applications for a certificate to determine if individuals otherwise precluded from employment demonstrate rehabilitation and if the nature of the individual’s offense is unrelated to their suitability for employment in a facility for the elderly.

The Department of Aging agreed that the compelling interest is to protect the rights of the elderly and the new bill must take into account the real negative consequences of Chapter 5 on health care facilities. Jobs are being lost in a business with a diminishing pool of qualified applications. The Department of Health is currently developing a policy where an employee with a good performance record but with a criminal background can have the employer take a second look at the employee and consult counsel for guidance.

To review the legislation access www.legis.state.pa.us.
(Note: The Nixon decision has no impact on Act 171 of 2002 that exempts mental retardation providers from the OAPSA abuse reporting requirements.)

OMR Resources
OMR offers several resources for information and answering questions:

  • Customer Service: 888-565-9435
  • IM4Q/HCSIS Help Desk: 866-444-1264
  • Web site: www.dpw.state.pa.us (For access to MR Bulletins)

CSADP
The Center for the Study and Advancement of Disability Policy (CSADP) has a disability policy web site offering a variety of information regarding training materials, policy papers, and policy briefs. Topics include ADA, IDEA, Olmstead, Personal Assistance Services, State Medicaid Buy-in Programs, Ticket to Work and Work Incentives Improvement Act. The web site is www.disabilitypolicycenter.org.

Equal Justice
Equal Justice is a statewide conference of the New Jersey Developmentally Disabled Offenders Program scheduled for April 22, at The New Jersey Law Center, New Brunswick, NJ. The sessions will address criminal justice system issues surrounding victims, witnesses and defendants with developmental disabilities. For details contact The Arc of New Jersey, 732-246-2525.

Resource
A three volume CD-ROM services for use by adults with developmental disabilities entitled, “How to Make a Good Decision” supports person-centered planning for people with mental retardation and developmental disabilities who need concrete help in problem solving and who have difficulty with abstract reasoning. For information contact the National Institute for People with Disabilities at www.yai.org or 212-273-6589.

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