Pennyslvania Law Banning Those with Criminal Records from Health Care Jobs Is Unconstitutional, Says New Lawsuit

Pennsylvania’s Older Adults Protective Service Act, section 503, imposes a lifetime ban on the employment of felons in any elder care position. The law makes no distinctions between different kinds of felonies or how many years ago an offense occurred. Philadelphia lawyer Tad LeVan is leading a lawsuit challenging the law, and he explains the lawsuit in this report.

Tad LeVan

Tad LeVan

LeVan explains that the current lawsuit is actually round two of the litigation. The effort to change the law began fourteen years ago when LeVan worked with a group of law professors and Community Legal Services of Philadelphia to challenge the law. The plaintiffs in the original lawsuit were five individuals and a nonprofit social services organization. That lawsuit challenged the constitutionality of the law as applied to those particular petitioners. The lawsuit was successful, but the ruling was limited to the particular plaintiffs in that case. That left the law essentially unchanged.

In the fourteen years since that first lawsuit, there has been considerable research into the issue of recidivism, including whether a prior conviction has any predictive value as to future conduct. As LeVan explains it, the social scientists who did the research have concluded that the predictive value is low. After four to seven years following a single conviction, the likelihood that someone will commit another crime is no greater than for any member of society. For felons with more than one conviction, the predictive value of the prior convictions vanishes after ten years.

LeVan says that, since the original litigation, some health care providers have filed declarations supporting the effort, saying that they are precluded from hiring people who would otherwise be desirable employees because of the law’s strictures. As this current lawsuit is filed, the OAPSA is seventeen years old. The law, says LeVan, is hurting both the quality of care available and the people who are barred from employment in the health care field.

LeVan feels that the new lawsuit has a good chance of success because of the nature of the ruling in the original litigation. However, asking a court to throw out a law entirely, rather than simply refusing to apply it to a small group of plaintiffs, is more of an uphill battle. Courts are naturally reluctant to overturn legislative enactments. LeVan opines that the court may be amenable to the logic of striking down the law now as opposed to requiring plaintiffs to return year after year in piecemeal attacks on the law.

LeVan says that there are other states with similar laws, “but usually they are not as draconian” as the Pennsylvania statute. Not only does the statute apply a lifetime ban, but it allows no pathway for an individual to seek an exception based on reform or rehabilitation. Some other state laws distinguish between different types of offenses, something absent from the Pennsylvania law. The original draft of the law made distinctions based on the seriousness of the crime involved, but the law as enacted lumped all offenses together. And that, says LeVan, is when the legislature crossed over into unconstitutionality.

Peter ("Tad") H. LeVan, Jr. is an accomplished trial and appellate lawyer who founded LeVan Law Group LLC to change the paradigm for provision of high-quality legal services to the business community. Tad has a well-established record of success in a wide variety of legal practices. Tad is often asked to participate as a guest lecturer or course presenter on a wide variety of legal topics, including oral advocacy, brief writing, deposition practice, ERISA breach of fiduciary duty issues, and class certification topics. The Legal Broadcast Network is a featured network of the Sequence Media Group.

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