Friday, October 2, 2009

Florida OK's Felons to Work With Elderly

Should people with criminal histories be allowed to work with the most vulnerable in our society? Due to an exemption system created by the 1985 Florida legislature, felons in that state can be hired to work with the elderly, the infirmed and children. Texas is the #2 U.S. retirement destination behind Florida and with being so, will soon face increasing challenges in accommodating our own aging population. People like to think we are protective of the most vulnerable in our society, but after studying probate/estate corruption and the companion issue of elder abuse, it quickly becomes evident that we are not. As Texas prepares for our own wave of an aged population, a recent story by the South Florida Sun Sentinel details a controversial course of action. Judge for yourself.

In an article entitled Second-chance system turns criminals into caregivers, reporters Peter Franceschina, Sally Kestin and John Maines introduced this exemption system as follows:

More than 8,700 people initially barred from being caregivers due to criminal records have been granted special permission by the state to work with children, the elderly and the infirm, a Sun Sentinel investigation found.

About 1,800 — or one in five — were arrested again, some within days of the determination that they were of “good moral character” and could be trusted to care for the state’s most vulnerable residents.

Felons have been allowed to work in day care centers, assisted living facilities and nursing homes through an exemption system created by Florida legislators in 1985.

The system was meant to give people with a long-ago minor offense a second chance, but convicts with multiple prison stints and career criminals with records spanning decades sail through with little resistance — 82 percent get an exemption.

In Broward County, the exemption approval rate is even higher for felons who want day care jobs — 98 percent.

It would appear overzealous, indiscriminate government bureaucrats have turned a program designed to provide gainful employment for select non-violent, if-it-weren’t-for-that-one-mistake-that-I-so-truly-regret offenders into a jobs program for career criminals. The Sun Sentinel says this review, the first statewide analysis since the program’s 1985 inception, finds the program “repeatedly fails to detect people who are likely to commit more crimes and overwhelmingly allows felons to work in positions of trust instead of assessing the threat they may pose on the job.”

Caregiver exemptions are based upon applicants showing they are rehabilitated “by expressing remorse, promising to be good and providing reference letters.” The article claims independent background investigations are sparse and applicants’ records reflecting serious crimes are often missed.

To add more cause for concern:

The public has no way of knowing which caregivers have received exemptions, and the agencies do not track them to ensure they stay out of trouble.

The Sun Sentinel found that 21 percent ended up in jail again after getting an exemption, many for felony offenses including murder, sexual assault and child cruelty.

One St. Petersburg man is serving a life sentence for molesting children after receiving an exemption to counsel adolescents and adults.

Broward officials gave a Miami woman with a record of marijuana possession an exemption in 2006 after she promised she had “been clean” for six years. Two days later, she was arrested for trying to buy cocaine.

And then there’s this woman:

One Central Florida woman won an exemption to work in a nursing home, and then stole from dozens of patients.

Lucia Rivera, then 44, pleaded guilty in 1999 to aggravated assault and other charges for beating the girlfriend of her estranged husband and encouraging an accomplice to slice the woman’s face with a knife, records show. In 2005, she applied for an exemption from the Agency for Health Care Administration.

“No reason to believe she would be unsuitable for the environment of a nursing home,” one AHCA reviewer wrote.

Last year, while working as the business manager at Avante in St. Cloud, Rivera was charged with stealing more than $36,000 from dozens of patient accounts.

“Most of those people were bedridden, comatose,” said Kathy Foust, a guardian for several victims. “When you’re in your 40s and you have a felony, you don’t need to be working around these people. They’re so vulnerable.”

AHCA officials said they were unaware of Rivera’s new arrest. Rivera was fired and is serving five years’ probation.

“Maybe the data that we’re gathering is not adequate to make predictions about the future behavior of some of these individuals,” admitted AHCA secretary Holly Benson.

Aggravated assault? Sorry, but why take such a chance? Unless you needed someone to organize cage fighting at the nursing home, this hardly seems a suitable placement.

It then gets worse. Florida felons have more difficulty tending bar than working in a nursing home or day care center. That’s right, the Sun Sentinel reports that felons have to wait 15 years to get a liquor license and bartenders must wait five years after their crime before being allowed to serve drinks yet an exemption to work with the old, young, incapacitated or disabled can be attained after only three years.

Here are more of the Sun Sentinel’s findings:

People with the most serious kinds of offenses on their records have been given exemptions, including 45 murderers, 54 people who committed manslaughter and 12 registered sex offenders, the Sun Sentinel found. Two hundred more committed child abuse, child neglect or contributed to the delinquency of a minor.

Felons must show “sufficient evidence of rehabilitation.” Reviewers are supposed to consider how long ago the crime occurred, whether any victims were harmed and the applicant’s history.

In a review of dozens of state and local exemption files, the Sun Sentinel found many contained nothing more than a criminal history and a few character references. Some were missing past or pending charges and other relevant information readily available on the Internet.

Several people who got exemptions were arrested again — and then granted exemptions a second time. A dozen were turned down by one state agency but approved by another.

While the AHCA is the administration arm granting exemptions for Florida health and elder care facilities, a similar function is performed by the state Department of Children & Families with regard to exemptions for workers in child care, drug or alcohol treatment and mental health counseling. The Sun Sentinel says the AHCA has approved 86 percent of requests and that the DCF has approved 80 percent of requests received since 1985.

After concerns arose in past years that DCF requests were being approved too swiftly, agency representatives claim to now be more more strict in granting exemptions so as “to try to get it right.”

Exemptions being granted despite incomplete information certainly put the unsuspecting public at risk as illustrated with the case of Richard R. Day:

Palm Beach DCF administrators gave an exemption last year to a sex offender, clearing him to work as a substance abuse counselor.

Richard R. Day, a Georgia psychologist, was seeing a patient in 1994 when he unbuttoned her blouse and put his mouth on her breast, according to court records. She went to the police. During her next visit, Day removed his pants and underwear, and police arrested him.

Day pleaded guilty to sexual assault and public indecency and was put on four years of probation. As a result, Georgia officials placed restrictions on Day’s psychology license, but he violated them and lost his license in 1997 for “devious, deceitful acts.” He was also convicted that year of stalking his ex-wife.

After moving to Florida, Day received a mental health counselor’s license from the state Department of Health, saying in his application that he had never been convicted of a crime or had a professional license revoked.

At his DCF exemption hearing in July 2008, Day gave his version of events.

“Mr. Day claims the incident was consensual and the victim acted inappropriately during her visit,” one DCF official wrote. “Mr. Day explained in detail his side of the story and admitted he was very vulnerable during that time and shared the situation got out of hand.”

The Sun Sentinel obtained police and court records from Georgia that portray a strikingly different scenario.

“I was scared and nervous, upset,” the woman told police. “I thought he was going to rape me, I mean, really.”

The detective who arrested Day, Donnie Canada, said in an interview he wouldn’t trust Day to counsel women.

“I wouldn’t want him anywhere around not just my daughter or relatives, but any female in a professional capacity,” he said. “To me it’s appalling they would not follow up and call the [prosecutor] or the investigator to find out what happened. That’s a failure of the system.”

Perry Borman, a DCF administrator, approved Day’s exemption last September. It took more than eight months because of delays and Day’s efforts to obtain records.

Borman admitted it was a “sloppy” and “subpar” review because DCF didn’t follow internal procedures, missed Day’s aggravated stalking case and didn’t have police reports in the sexual assault case.

“I think part of this was we felt bad that this was taking so long for Mr. Day that we may have overlooked things that we shouldn’t have,” he said.

DCF notified Day earlier this month that he would have to re-apply for an exemption based on the information uncovered by the Sun Sentinel. He was working as a counselor in a West Palm Beach psychiatrist’s office.

Calls for reform are now being heard. Congratulations to the South Florida Sun Sentinel for helping expose these threats.

Texas currently regulates the hiring of felons both as health care workers and child care providers. This information, however, does not appear to be easily accessible. Phone calls to government agencies and care provider companies revealed a lack of concise knowledge regarding employment requirements or an information source for either category of worker. This doesn’t bode well for compliance, but that’s the reality of today’s world. Numerous internet searches finally yielded what appear to be Texas’ regulations regarding criminal convictions for health care workers and another for child care providers.

The Texas Health and Safety Code provides a list of convictions barring employment (Sec. 250.006) from “certain facilities serving the elderly or persons with disabilities.” Under the Texas Administrative Code section on Department of Family and Protective Services Licensing rules, Rule §745.651 lists criminal convictions that “preclude a person from being present in an operation.”

The screening out of known criminals is problematic on numerous fronts with vague knowledge of the laws only exacerbating that status. Texas is at least attempting to not unleash potential criminal predators on the most vulnerable in our society. Yet any real success will also require companies to take responsibility in putting safety over expediency and the “bottom line.”

Meanwhile, this is an issue that people need to watch. Thankfully we’re not Florida, but the upcoming years will cause an increase in social and fiscal pressures as accommodating our aging population becomes more challenging.

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. She is the Online Producer at and a Policy Advisor with Americans for Prosperity – Texas. Lou Ann may be contacted at

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