Michigan Reentry Law Wiki

Sample letter to the Michigan Department of Community Health asking for clarification on employability

From Reentry

October 17, 2006

Carl Martin
Michigan Department of Community Health
Capital View Building, 7th Floor
201 Townsend Street
Lansing, MI 48913

Re: Jane Doe

Dear Carl,

I am writing on behalf of Jane Doe to request both that the Michigan Department of Community Health issue a letter stating that Ms. Doe is eligible to work in long-term care, and that the Department revise the “Employment Exclusion Notices” it sends out when individuals are deemed ineligible to work in long-term care as the result of a criminal background check.

Ms. Doe has significant experience as a nurse aid. Ms. Doe initially became interested in long-term care work while assisting a friend who operated an adult foster care facility. She obtained her C.N.A. certification, and then began working at Company A. She worked at Company Afrom February 2003 to July 2004. See Appendix A (resume) and Appendix B (letter from Company A). She left that position because she was moving for family reasons. From July 2004 to July 2006 she worked Company B, an adult foster care facility located at XXX. See Appendix C (letter from Company B). Ms. Doe’s employers have consistently found her to be an excellent employee.

Ms. Doe held a live-in position at Company B. In the summer of 2006, Ms. Doe decided that she no longer wanted to be employed in a live-in position. She has two children living at home, and found that she wanted to have more separation between her work and personal life. Ms. Doe reapplied to Company A. Company A was happy to rehire her. During the hiring process, Ms. Doe explained that she had heard that there were new laws that prevented individuals with criminal records from working in long-term care. Company A told her that she was eligible to be rehired, despite the fact that Ms. Doe has a felony record. Ms. Doe gave notice at Company B, and began the training program at Company A. Company B hired someone else to fill Ms. Doe’s live-in position. However, Company B continued to use Ms. Doe as on-call nurse’s aid.

On July 2, 2006, the Michigan Department of Community Health issued an “Employment Exclusion Notice,” finding that Ms. Doe was ineligible to work in long-term care due to her criminal record. Ms. Doe received the letter the day before she was to vacate her apartment at Company B, so that the newly-hired employee could move in. Ms. Doe contacted Company A and asked them if the letter meant that she could not be employed. Company A only reviewed the letter after Ms. Doe brought it to their attention. Company A subsequently withdrew its offer of employment.

Ms. Doe, who suddenly had no income and no housing, became homeless. She and her two children moved into a shelter. Ms. Doe and her children lived in the shelter for two months before Ms. Doe was able to find work in a factory through a temporary service.

Ms. Doe attempted to appeal by writing to the Department of Community Health. (Ms. Doe did not keep a copy of her letter, and I request that you send me a copy, along with all other documents in Ms. Doe’s file.) The Department responded in a letter dated July 18, 2006, stating that “it appears you are asking for consideration on the basis of rehabilitation. The passage of the new laws only allow for appeals based on claims of inaccurate record or a conviction that was expunged or set aside by court order.” The letter further stated that Ms. Doe’s letter had claimed inaccuracies, but that Ms. Doe had failed to provide the necessary proof. On July 25, 2006, the Department sent another letter stating that after January 3, 2007, Ms. Doe would be eligible for long-term care employment.

Ms. Doe’s criminal record contains two, very old felonies. The first is an attempted embezzlement conviction from January 3, 1995. This conviction occurred when Ms. Doe, who was working at Walmart, refunded a customer for an item that was not sold by Walmart. The second conviction from March 23, 1997 is for felony welfare fraud. The conviction occurred because Ms. Doe failed to report a job while receiving public assistance. Ms. Doe has not had any subsequent convictions.

The Department’s handling of this matter violated the procedural protections guaranteed by the Due Process Clauses of the Michigan and U.S. Constitutions. Ms. Doe is “grandfathered in” under MCL 333.20173a. The language of the statute is clear: the criminal record exclusion does not apply to “[a]n individual who is employed by, under independent contract to, or granted clinical privileges in a health facility or agency before the effective date of this section.” MCL 333.20173a(2)(a) (emphasis added). Ms. Doe was employed as a nurse aide by covered health facilities and agencies before April 1, 2006, when the Act became effective.

Ms. Doe continued to work at a covered facility after April 1, 2006, until she decided to transfer to a position at another facility. The statute explicitly addresses a “grandfathered” employee’s eligibility to transfer to a new job. Specifically, the law provides that “[a]n individual who is exempt under this subdivision is not limited to working with the health facility or agency with which he or she is employed,” but may go work for a different employer. Id. While an individual who transfers to a new employer is subject to a background check, the individual remains grandfathered in, unless the background check discloses a conviction subsequent to April 1, 2006. Id.

Despite the fact that Ms. Doe is clearly a “grandfathered” employee, the “Employment Exclusion Notice” that the Department sent to Ms. Doe on July 2, 2006 stated that her record excluded her from long term care employment. The notice did not inform her that she would be eligible to work if she were a “grandfathered employee.” The notice did not provide her with information about how to demonstrate her “grandfathered” status. Ms. Doe did not learn that she is actually eligible to work until she consulted our office last week.

Because the Department’s notice did not advise Ms. Doe that she could work if she were a grandfathered employee, and because the notice did not explain the steps she would need to take to obtain work authorization, the notice was constitutionally inadequate. As the Sixth Circuit has explained, “[r]equiring notices to accurately state how a claimant might appeal an initial decision does not impose a significant financial or administrative burden on the [state] . . . . Moreover, the form of the notices used here is sufficiently misleading that it introduces a high risk of error. . . . One of the fundamental requirements of procedural due process is that a notice must be reasonably calculated to afford parties their right to present objections.” Hamby v. Neel, 368 F.3d 549, 562 (6th Cir. 2004), quoting Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). The notice here did not inform Ms. Doe of her right to challenge the employment exclusion based on the fact that she is a grandfathered employee. The notice introduced a high risk of error. Although Ms. Doe is a “grandfathered” employee, she was prevented from working because she was not informed about the statute’s grandfathering provisions. In sum, the notice was not reasonably calculated to afford Ms. Doe the right to present objections to the state’s determination that she cannot work in the long-term care field.

Ms. Doe was severely harmed by this lack of notice: she lost a job and she and her children spent two months in a homeless shelter. She continues to be barred from her chosen profession. If the notice had informed her about her rights under the statute, Ms. Doe could have easily demonstrated her “grandfathered status,” and would not have suffered this injury.

There are two actions I would ask the Department to take to address this issue. First, the Department should provide Ms. Doe with a letter confirming that she is eligible to work in facilities covered by the background check requirements. The letter should explain that she is “grandfathered in” under the statute, and should state that she may transfer to a new employer. Second, I would ask that the Department revise the notices that it sends out whenever a criminal background check reveals a conviction that would disqualify an individual who is not grandfathered in under the statute. When Ms. Doe again applies for work, her prospective employers should not be incorrectly informed that she is ineligible to work. The revised notice should clearly state that an individual who can demonstrate that he or she has worked in long-term care prior to April 1, 2006 is eligible to work, and should provide specific instructions on the steps such an individual must take to prove his or her grandfathered status.

Ms. Doe believes her calling is to work in long-term care. She is passionate about this work, and anxious to return to it as soon as possible. I would ask that you respond to this letter by November 10, 2006. If I do not hear from you by that date, I will advise my client that it may be necessary to obtain a court ruling on this matter.

Sincerely,


Miriam Aukerman Reentry Law Project


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