June 2013 National:
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.
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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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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.)
6-27-15 Pennsylvania:
