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Attorney General Raises Concerns about Criminal Background of Some Staff in Residential Care Facilities

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Issue 28, Summer 2005

Attorney General Raises Concerns about Criminal
Background of Some Staff in Residential Care Facilities
by Alison Hirschel, MPLP Elder Law Attorney


Attorney General Mike Cox announced recently that his office conducted two studies that revealed almost 10% of the employees caring for approximately 100,000 Michigan seniors and vulnerable adults have criminal backgrounds. Cox stated he commissioned the studies to evaluate the effectiveness of Michigan's three year old criminal background check requirements after the AG's Health Care Fraud division found that 25% of employees charged with crimes against residents in the past three years had past criminal convictions.

In the first study, staff reviewed the criminal backgrounds of a statewide sample of Michigan's 40,000 Certified Nurse's Aides (CNAs), the single largest group of certified workers providing direct care to residents. Of the more than 5,500 CNAs studied, the AG reported that 9% had a total of 836 outstanding criminal warrants and 3%, or 170, had past criminal convictions. The second study checked the backgrounds of entire employee populations B from CNAs to administrators B at four nursing homes in different regions across Michigan. A total of 618 employees were checked and the AG reported that 58, or more than 9%, had 101 outstanding warrants; 68, or 11%, of the staff had past criminal convictions.

As a result of concerns raised by these studies, Cox and three state senators announced the introduction of legislation (SB 621-623) to broaden the bar on employment of workers with criminal backgrounds and to increase sanctions for providers who fail to check backgrounds as required by law. A large workgroup has been formed to review proposed changes.

While recognizing the need to protect vulnerable residents, many advocates also fear that the proposals may go much too far. First, low wage workers may have few options outside of long term care and may be excellent caregivers despite criminal convictions. Second, it is difficult to attract caregivers to low wage work in residential care facilities and the proposed legislation further, and perhaps inappropriately, reduces the pool of potential workers. Moreover, some of the proposals are quite extreme, such as barring applicants from employment if they have been diagnosed with a mental illness, whether or not they are receiving treatment at the time of employment. In addition, providers are sure to object to some of the requirements in the proposed legislation which would impose significant costs on them and put them at risk of a felony conviction if they failed to conduct the requisite background checks.