The number of registered sex offenders (RSOs) is increasing as states continue to expand the definition of crimes that require such registration. Furthermore, this population is aging and in need of care in long-term care (LTC) or rehabilitation facilities. Many states have laws concerning admission or management of RSOs in LTC facilities and other states, such as Iowa and South Carolina, are contemplating regulations.
However, many states do not have any specific guidance on admission or discharge of RSOs. For operators with multistate facilities, the laws can differ significantly. This is a difficult issue with legal, ethical, and operational dimensions. However, this issue is not limited to RSOs who are or may become residents.
Facilities also must be mindful of employees, volunteers, and contractors who may have access to residents. They, too, could be registered sex offenders. The industry needs to be prepared to manage the challenges and risks that these individuals may pose to a facility and its residents and staff.
A 2006 report issued by the Government Accountability Office (GAO) to evaluate the prevalence of sex offenders living in LTC facilities found about 700 registered sex offenders living in nursing homes or intermediate care facilities for people with mental retardation. A significant number of registered sex offenders were male and younger than 65 and represented .05 percent of the approximately 1.5 million residents of nursing homes and intermediate care facilities.
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A Massachusetts law prohibits a level 3 sex offender from knowingly and willingly establishing residency in a nursing home or similar facility. There is a potential for jail, as well as monetary fines, this provision is violated. In 2011, a challenge was brought against this law by a 65-year-old Level 3 RSO who was mugged, hospitalized, and sent to a nursing home to recuperate. He then moved to another home where the Boston police told him he could not remain because of his Level 3 status He sued challenging the constitutionality of the law. The court agreed that the statute violated his due process rights because there was no individualized assessment that the public safety risks of him leaving the home outweighed the public safety concerns of him residing in the home.
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BACKGROUND CHECKS
There are different methods providers can use to obtain information about a potential resident and whether he or she is a registered sex offender. LTC facilities can conduct background checks of all prospective residents after seeking legal authorization to run these checks from the resident or his or her legal representative.
However, the costs associated with conducting these checks could be significant, create room for error if not done properly, and also take several days or more to complete which is an issue where quick admissions are the norm. A facility may decide to make passage of a successful background check a part of its admissions agreement. If negative information is received, then seek to discharge the resident or void the admissions agreement. However, this can be complicated by regulatory agencies who more often than not will intervene on behalf of the resident and will make such a discharge or transfer difficult or legally risky.
Some facilities in an effort to save money and to better leverage their internal resources may rely on staff members to conduct background checks or searches on prospective residents. These searches may violate the Fair Credit Reporting Act (FCRA) if the facility has not secured authorization from the resident or their legal representative to conduct the search. (This is one reason why, RSOs need to know, where their information came from; rights may have been violated.)
Additionally, these registries vary greatly from state to state and how information is organized and various offender levels are defined. Consequently, there is a high potential for mistaken identity and error, which could lead to regulatory action and litigation. Another possibility is to have a question on the admission application inquiring whether the individual is a registered sex offender. While this self disclosure may be the least expensive and intrusive way of obtaining this information, such a query will obviously invite further questions from potential residents and their families on how the facility safeguards against admission of RSOs.
Other LTC facilities that are located in states where disclosure is not required may decide not to inquire about the status of a resident upon admission. Unfortunately, this could be a risky endeavor as other residents or their families could discover on their own that there is an RSO residing in the facility which could lead to concern or bad publicity.
Once the information is obtained, facilities have to take a balanced approach when deciding whether to deny admission to a registered sex offender. While there do not appear to be any laws which strictly prohibit a facility from denying admission to an RSO, facilities need to be careful not to inadvertently violate the law by not admitting someone who may have committed a sex crime based on a mental disability or by failing to administer a policy on a consistent basis. Operators should consider the level of the offense, years since offense was committed, nature of offense, any rehabilitation efforts, and the resident's current medical condition. ..Continued.. by Caroline J. Berdzik who is a partner at Goldberg Segalla LLP and a former assistant general counsel for New Jersey’s largest privately held LTC company.
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