Florida Injury Lawyers Blog

The Sun Sentinel recently provided an outstanding public service to the citizens of Florida by exposing serious loopholes in Florida law which have allowed individuals of questionable background to obtain employment in day-care-centers, assisted-living facilities (ALFs), and nursing homes, sometimes even before the results of their criminal background check were obtained. Even if the background checks raised red flags, many felons were able to continue working as caregivers with children or the elderly by “establishing” that they were reformed felons to the satisfaction of the Department of Children & Families or the Agency for Healthcare Administration.

Both nursing homes and ALFs are regulated by the Agency for Healthcare Adminstration. ALF's are also known as adult congregate living centers and are governed by Chapter 429, Florida Statutes. ALFs may range from large residential facilities to private homes. Generally, ALFs which have been granted a stadard license by the State of Florida are required to provide only the "basics" of day-to-day living and limited personal services. A special license is required to provide nursing services through licensed nurses.

Nursing homes often involve large institutions which provide skilled nursing care and are governed by Chapter 420 of the Florida Statutes. Nursing home residents may include long-term residents or residents who are released to the nursing home for a period of rehabilitation following a hospital stay. The latter situation typically occurs when the elderly person is released to a nursing home directly from the hospital, say, for example, after a hip replacement surgery, for an interim stay at a nursing home.

Individuals who work at nursing homes or ALFs and will be performing personal services on behalf of the elderly residents are supposed to pass a background check pursuant to Florida Statute 435.03, otherwise known as "Level I" screening. Interestingly, the Level I screening requirement does not require a nationwide background check for criminal "activities" through the Federal Bureau of Investigation (FBI). The "loose" Level I screening requirements mean that theoretically a former felon from another state could move to Florida, begin working at a nursing home or day-care center or ALF and pass a Florida background check!

As the Sun Sentinel Article pointed out, a more stringent background check (Level II) involving a nationwide criminal background check is required for individuals whose jobs involve handling financial assets pursuant to Florida Statute 435.04.

Furthermore, the law allows individuals who have a suspect criminal background record to apply for an exemption through Florida Statute 435.07. Perhaps it is this loophole in the law that is most disturbing. According to the Sun Sentinal report, the "exemption" system has cleared nearly 9000 individuals with a criminal past to work as caregivers with children and the elderly. The report has prompted state officials to investigate over 850 individuals who were cleared to work as caregivers and then re-arrested for new crimes!

As a consequence of the Sun Sentinel's investigation, legislation is now being proposed to close this loophole where nationwide background checks for children and elder caregivers would be required before such caregivers are even hired. Also, Florida's Attorney General, Bill McCollum, has ordered a review of Florida's questionable employee screening system which has allowed convicted felons to work in nursing homes, day-care centers, and assisted living facilities (ALFs). Bravo!

It is difficult to understand just why Florida has such loosy goosy standards in place. Perhaps the underlying intention was to give reformed felons a “second chance” in life. Unfortunately this program has resulted in serious ramifications for unsuspecting elderly adults and their families as the Sun Sentinel investigative series discussed. For example, a jury has just convicted Andrew Gosciminski, a supposedly “reformed” felon, for the robbery and murder of the daughter of a resident at the Fort Pierce ALF where he was actually the marketing director! The jury recommended the death sentence.

The Sun Sentinel also reported a case where an "exempt" former felon stole $36,000.00 from the patients at the nursing home where she was employed and pedophiles have been employed in jobs where they have routine contact with children! Moreover, the high recidivism rate of felons is well known. Who knows if certain former felons who seek employment at facilities serving our vulnerable citizens are simply looking to commit crimes of opportunity? Or perhaps, the crime of opportunity, which happens to present itself, is just too good to pass up.

Thanks to the Sun Sentinel's investigation, Florida state senators and representatives are promising to take swift action to remedy these pitfalls in Florida law. As nursing home negligence and abuse attorneys, we have posted numerous blogs on nursing home negligence and abuse, including one blog which touched on implementing common sense procedures designed to better protect the elderly from injuries related to negligence and/or abuse. Requiring stringent screening standards for those who work with the elderly and children is surely a common sense approach for protecting our vulnerable citizens from exploitation by “unsavory” characters which can result in both physical harm and financial harm. Afterall, what better a victim than an elderly person suffering from frailty, dementia, and/or Alzheimer's?