WHO – Wisconsin Homecare Organization

Wisconsin Homecare Organization

Repeal or Amend Wisconsin Act 172

February 2009

Recently enacted Wisconsin Act 172 was passed in an inappropriate manner, governs the wrong segment of the population and unfairly creates barriers to employment – during a time of severe economic distress — for thousands of home health care and hospice care workers in our state. We call on the Wisconsin Legislature to repeal or amend Act 172 to remove non-felony offenses.

What Act 172 does

The law requires licensed home care agencies and hospices to report to their patients any personal care giver in their employ who has been convicted of any one of a long list of criminal offenses (list published by DHFS). The effect of the law is to deny employment in these fields to care givers who have these convictions in their past, regardless of how long ago the offense was committed or what debt to society has already been paid.

Act 172 in unreasonably broad

• The law effectively includes convictions for minor offenses such as shoplifting and pot smoking, treating them as equivalents of felonies.
• The law effectively creates a permanent punishment for minor offenses, regardless of how long ago they may have been committed. Personal care givers who were convicted of some minor offense as much as 30, 40 even 50 years ago are now required to have this reported to the people they care for in home health or hospice.

Act 172 creates an unreasonable barrier to employment

• A great many elderly patients will simply refuse to receive care from these care providers, based on the required revelation, and the care givers will be out of work. The same applies to home health aids and certified nursing assistants in the employ of licensed home care and hospice agencies, because these employee classes often also perform personal care tasks.
• Such unreasonable barriers to employment are especially egregious during the current recession. Currently the US unemployment rate is at 7.6%, 1.8 million jobs have been lost in the 90 days, and 11.6 million workers are out of work.

Act 172 governs the wrong population of care givers

• Most personal care is provided by personal care-only agencies, yet these agencies are not governed by this law.
• Licensed home health agencies are already required, by law, to perform criminal background checks on prospective employees, to be subject to oversight and correction by the Wisconsin Division of Quality Assurance, and to report outcomes data for the federal home care compare public reports – creating far greater protection for patients than is provided by personal care-only agencies.
• The law creates an unequal burden among providers of care to these patients, as it excludes nursing homes, CBRFs, the state Fiscal Agent program, Family Care providers, independent nurses, personal care-only agencies and supportive care agencies. Hospitals are effectively excluded through a loophole in the law.

Act 172 was passed without due process

The law was rushed through as an “emergency rule,” when no emergency existed, and exposed to no public hearings, denying the people affected the opportunity to speak up for themselves