[authors: Michael D. Fabius, Jean C. Hemphill]

For personal care homes in Pennsylvania, the state’s new Voter ID Law may unexpectedly be the impetus for a new duty to issue photo identification to residents if necessary to enable the residents to vote.

On June 1, 2012, the Pennsylvania Department of Public Welfare sent a notice to personal care home operators advising operators of this potential new duty to issue photo identification as a result of Act 18 of 2012—also called the Voter ID Law—signed by Governor Corbett in March. This potential duty may extend to other types of care facilities as well.

The notice explained that under the Voter ID Law, acceptable photo identification for the purpose of voting includes IDs issued by personal care homes, long-term care nursing facilities, and assisted living facilities—provided that the identification includes an expiration date and is not yet expired. The notice also includes a template photo ID.

The Voter ID Law does not require these facilities to make such identification available and DPW’s notice acknowledges there is no specific regulatory requirement relating to issuing photo IDs. However, DPW’s notice informs personal care home operators that failure to assist a resident who wishes to vote—by which DPW means failing to issue photo identification if necessary to enable the resident to vote—“may” result in a violation of the personal care home’s obligation to provide assistance with Instrumental Activities of Daily Living (IADLs), as indicated in a resident’s support plan.

Under the Voter ID Law, a Pennsylvania resident who wishes to vote may require photo identification from his personal care home if the resident does not have any one of the following acceptable forms of photo identification:

• U.S. Passport
• Pennsylvania Driver’s License or non-driver ID
• Military ID (with an expiration date)
• Federal, Pennsylvania, or municipal employee ID (with an expiration date)
• University ID (with an expiration date) 

The Corbett administration has stated that 80,000 to 90,000 Pennsylvanians do not have one of these forms of identification. The American Civil Liberties Union filed a lawsuit alleging that the number is much higher and includes a significant number of older voters who are more likely to be residents in personal care homes.

In light of DPW's uncertain position on whether a duty to issue photo identification exists, personal care home operators should consider identifying residents who will require photo identification and issuing them such identification. Although DPW’s guidance to date is limited to personal care homes, long-term care nursing facilities and assisted living facilities may also want to act on DPW’s guidance and consider a similar program.

Members of Ballard Spahr’s Health Care Group regularly advise health care providers on compliance with federal and state regulations. For more information on the impact of this potential duty to issue photo identification, please contact Jean C. Hemphill at 215.864.8539 or hemphill@ballardspahr.com or Michael D. Fabius at 215.864.8246 or fabiusm@ballardspahr.com.