During the height of the pandemic in 2020, the Pennsylvania General Assembly made a priority of approving Act 53, known as the occupational licensing reform bill. The bill was guided to passage by bipartisan lead sponsors and supported by both conservative and liberal advocates, including the PA Chamber. The goal of all concerned was obvious: to open occupational licensure to people with old and unrelated criminal convictions, helping both Pennsylvania families and businesses. To learn more about the bill, click here.
But the PA Department of State, which is tasked with drafting implementing regulations, has missed the boat. The agency’s regulatory package, available at 52 PA Bulletin 7108 (November 19, 2022) repeatedly says that the purpose of Act 53 was to provide “transparency and clarity” about what crimes can be disqualifying. Given the agency’s fundamental misconception of the point of the law, its proposed regulations undermine, rather than support, Act 53’s goal of opening the licensed occupations to people with unrelated criminal records.
The proposed regulatory package must be revised before it can be approved:
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- Its lists of “directly related” offenses, which carry a presumption of unfitness of a license applicant, must be shortened.
- Each offense must have a time limit for how long the presumption continues.
- These changes must be made through an evidence-based process.
- Community Legal Services has submitted a public comment on the regulatory package, entitled “Regulatory Package 16A-66 (Consideration of Criminal Convictions) Violates the Letter and the Intent of Act 53 of 2020 With Its ‘Directly Related’ Lists Leading to a Presumption of Unfitness.” Learn how you can submit a public comment below (“What You Can Do”).
Lists of “Directly Related” Crimes are Overbroad and Unreasonable
The agency and its boards and commissioners were required by Act 53 to identify “directly related” offenses, the conviction of which will result in a presumption that the applicant poses a “substantial risk” if licensed. They have proposed over-inclusive lists that will keep people out of the licensed professions. For example, the Board of Nursing lists 92 separate crimes, in addition to violent, sexual and drug trafficking offenses. The Barber Board’s list includes possession of a drug with intent to deliver and felony DUI. Although people can provide evidence that they have been rehabilitated when they apply for a license, how many people can put years and thousands of dollars into studying nursing, for instance, if they know they are presumed unfit and might not be licensed?
The Pennsylvania Affiliate of the American College of Nurse-Midwives (PA-ACNM), the Pennsylvania Association of Nurse Anesthetists, the Pennsylvania Coalition of Nurse Practitioners and the Pennsylvania State Nurses Association have spoken out against the Nursing Board’s overbroad list of crimes. They joined in coalition to oppose the proposed list of crimes in 2020, stating “we collectively do not believe the list of crimes as proposed by the Board of Nursing is equitable nor are many of the crimes listed directly related to the practice of the profession. The proposed Board of Nursing list in its current form will adversely impact prospective and current licensees under the purview of the Board of Nursing, which was not the intent of Senate Bill 637, now known as Act 53 of 2020.” Read their coalition letter here.
Lifelong Barriers to Licensing Have Been Created
There are no time limits on any of the “directly related” offenses. The presumption against licensure lasts for people’s entire lives, no matter how rehabilitated they are. Studies of desistence from crime show that the longer a person goes without reoffending, the less likely they will do it in the future. The lifetime barriers created by the agency and its boards and commissions are completely inconsistent with this evidence and contrary to the intent of the legislation.
A Faulty Process Led to Unreasonable Regulations
The agency emphasizes that its regulations were created based on consultation with the licensing boards and employers. Notably missing from that short list are experts with evidence-based knowledge on whether and how long criminal convictions are directly related to professions. The agency failed to consider reports from two nationally known experts addressing these issues earlier this year. The reports are available for public review:
- Desistance Researcher Report: Kiminori Nakamura, Ph.D., criminologist expert, explains how a person with a criminal conviction is no more likely than anyone else to commit a crime after only 4 to 7 years;
- Industrial/Organization Psychologist Report: Toni Locklear, Ph.D., explains how experts determine whether a crime is related to a profession, and proposes a systemic, evidence-based methodology that should be used by the Boards to make their lists. In her paper, Dr. Locklear explains that the amount of time that has passed since a conviction is a key factor is determining relatedness. Locklear also conducted a demonstration exercise with a group of nursing experts to show her methodology in action.
What You Can Do
SUBMIT A COMMENT
The proposed regulations were published in the Pennsylvania Bulletin on November 19, 2022 and are open for public comment until December 19, 2022. Please write to RA-STRegulatoryCounsel@pa.gov, copying melliott@irrc.state.pa.us, to object to the proposed regulations and to ask that they be reworked to bring Pennsylvanians with criminal records into the licensed occupations. Include in the subject line ”16A-66 (Consideration of Criminal Convictions)” when submitting comments by e-mail.
Please write your comment in your own words. A comment that reflects your own beliefs and concerns is best.
Some points you might want to make:
- The goal of occupational licensing reform is to open occupations to people with old and unrelated criminal records. OLR also helps businesses experiencing worker shortages, such as the nursing profession.
- People can’t take the risk of spending years and money going to school for a new profession if they are presumed to be unfit to be licensed. Even if they will have a chance to show in a hearing that they should be licensed, that chance would not occur until they actually apply for a license after their training is completed.
- The list of offenses that lead to people being presumed unfit must be as narrow as possible. And people should not be presumed unfit for their entire lives. There must be time limits on how long the person’s offense is held against them.
- Please say anything specific to the licensed occupation that you most care about, if any.
Read the public comment submitted by Community Legal Services.
SPREAD THE WORD
Please download and share our one-page flyer and two-page flyer.
Contact Brendan Lynch, blynch@clsphila.org, Katie Svoboda-Kindle, kkindle@clsphila.org, or Sharon Dietrich, sdietrich@clsphila.org of Community Legal Services (CLS) for more information.
