Background

SJR 106 of the 2006 General Assembly Session directed the Joint Commission on Health Care (JCHC) to study the impact of barrier crime laws on social service and health care employers, and to present its findings to the Governor and the 2008 General Assembly. Barrier crime laws prohibit persons convicted of certain statutorily-defined crimes from obtaining employment with employers specializing in the care of vulnerable populations, such as children, the elderly, and those with mental disabilities. The Code of Virginia §63.2-1719 and §37.2-314 lists 89 felonies and 21 misdemeanors as barrier crimes relating to social services and health care employers.

Workgroup Activities

JCHC staff convened a workgroup to discuss SJR 106. The workgroup met in March 2007 and consisted of representatives from various stakeholders, including:

Virginia Association of Community Services Boards;
Alzheimer’s Association of Virginia;
Virginia Assisted Living Association;
Virginia Health Care Association;
Virginia Association for Home Care & Hospice;
SAARA of Virginia;
DMHMRSAS, Office of Substance Abuse Services;
Virginia Health Care Association;
SAARA of Northern Virginia, President;
Virginia Association for Nonprofit Homes for the Aging; and,
Virginia Network for Private Providers.

Research findings and the testimony of stakeholders revealed that persons with a history of mental illness and/or substance abuse problems often have criminal backgrounds related to their illness or substance abuse problems, and consequently have difficulty obtaining employment, making rehabilitation more difficult. Employers also have difficulty obtaining a qualified workforce.

Although workforce shortages affect many of the health and social service providers in Virginia, most of the workgroup participants indicated they were not interested in changing the barrier crime laws affecting their services. However, this was not the sentiment expressed by representatives of the community services boards (CSBs) who suggested removing the current barrier crimes provisions pertaining to employment in adult substance abuse treatment facilities and allowing consideration of an individual’s entire criminal record. They also suggested providing for a rehabilitation assessment for employment of individuals with serious mental illness similar to the assessment allowed for individuals with substance use disorder.

Virginia law allows individuals with substance use disorder, with certain barrier crimes on their record, to be assessed for rehabilitation and therefore become eligible to work in direct care within an adult substance use program. There is no similar provision in Virginia law to allow individuals with mental illness and certain barrier crimes to qualify for rehabilitation assessment. Consumers with serious mental illness may have assaults in their background making them ineligible to be employed as peer counselors. Often, these assaults involve a family member or a law enforcement officer during the emergency custody or temporary detention process. Many consumers with serious mental illness could benefit from peer contact, similar to the benefits enjoyed by consumers with substance use disorder. The CSBs estimate that over 40 mental health consumers would qualify for employment, if they could be assessed for rehabilitation in the same manner as allowed for substance use disorder.

Legislation

Based on the two-year study, staff presented legislative options to JCHC and the following legislation was approved for introduction during the 2008 Session of the General Assembly:

HB 1203 (Melvin)/SB 381 (Martin) would amend Code of Virginia §§37.2-506, 37.2-416 to allow persons convicted under §§18.2-57(A) and 18.2-57.2(A) to also be assessed for rehabilitation as set forth in §§37.2-506(C) and (D), 37.2-416(C) and (D); Specify that the rehabilitation assessment will apply only to persons seeking employment in adult substance abuse programs and adult mental health programs and that the criminal behavior was substantially related to the substance abuse disorder and/or mental illness.