IHSS, Round 2

Governor Schwarzenegger tried to keep people with conviction history out of the care provider industry before, but he was blocked by the courts.  So he's going after it again--this time, in partnership with the LA Times.  A fitting partnership, I must say, given the paper's track record in fear-mongering against people with conviction history.

The current law already prohibits an IHSS recipient from employing her family member through the program if the family member has been convicted of child abuse, elder abuse, or Medicare fraud in the past 10 years.  The law does not care if the family member completely turned his life around, or if he may be the best caregiver for the IHSS recipient.  The 10-year ban is absolute.  Cal. Wel. & Inst. Code section 12305.81.

And the IHSS program is already set up to give the recipients the freedom and duty to screen whom they choose to care for them.  The existing law exempts IHSS agencies from liabilities arising out of the conduct of caregivers they refer to recipients.  Cal. Wel. & Inst. Code section 12301.6(f).

With this setup, individual recipients must follow existing laws on hiring people with conviction history.  For example, under California's Investigative Consumer Reporting Agencies Act (ICRAA), background check companies cannot report convictions older than 7 years.

If the laws change (as proposed by Governor Schwarzenegger) then the Department of Social Services would be exempt from the ICRAA provisions and will consider old convictions too, substituting its judgment for the judgment of recipients as to who is best qualified to provide care for them.

Needless to say, advocates are already working hard to make sure that rational deliberation wins over irrational fear-mongering.  (Thank you, Jessie!)  Here's hoping and praying that California legislators are more level-headed than LA Times reporters.

Fear over reason, every time...?

Let's say that an employer kept in check her bias against people with criminal history and purposefully considered the 3-N's to make a reasonable decision whether to hire an applicant with an extensive criminal history. After careful consideration, the employer finds that, although a particular need justifies background check (say, because the position would require interaction with young children), the applicant's criminal history lacks the nexus to warrant denial of his employment.

For 15 years, the employee with a criminal history does a good job, obeys all laws, and is fully "rehabilitated" by any definition of that word. Not even a traffic ticket, as they say. One could even say that the employer's careful consideration 15 years ago has been proven right by the passage of time.

But what if someone else finds that the employee has a criminal history? The fifteen years of no recidivism is thrown out the window, and there is a public outcry of "We were so lucky that the criminal didn't hurt our children!"

It happened earlier this year in Los Angeles, when the LA Times' fear-mongering articles resulted in the massive firing of people with criminal records from the county hospital for no other reason than that they had decades-old convictions.

Today, St. Petersburg Times reports that a 60-year old man may lose his position on the board of a girls softball team because of the revelation that he had been convicted of crimes more than 15 years ago.

Les Miserables anyone?