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.
Unfortunately, RSOs may also be working in LTC facilities because of inadequate or incomplete background checks or for other reasons. Operators and their attorneys must ensure that the employees providing care to residents do not pose a danger to them by conducting thorough background checks and through vigilant monitoring of employee/resident relations.
The GAO report did not necessarily conclude that RSOs were more likely than other residents to commit sexual crimes. In fact, administrators in the survey expressed more concern about cognitively impaired and individuals with mental health issues committing sex crimes. The report illustrates that facilities need to have robust policies and procedures to also monitor behavioral changes of residents that may demonstrate proclivites to commit sexual crimes.
SEX OFFENDER REGISTRIES
Federal law requires that law enforcement in all 50 states enact sex offender registries and notification laws in order to receive funding for law enforcement initiatives. States are free to determine how registries and notifications are made, which has created significant confusion and in some cases, unclear guidance. As a result of the GAO report, Virginia, in 2007, passed a fairly comprehensive law which requires both assisted living facilities and nursing homes to receive notification of RSOs in the area. In Virginia, LTC facilities are required to register with the state police to receive automatic notification if a sex offender registers or re-registers or if the sex offender's home or work address is in the same or a contiguous zip code of the facility. Facilities in Virginia must determine prior to admission whether potential residents are registered sex offenders if the individual will stay longer than three days or if the person actually does stay longer than three days.
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.
Supporters of notification legislation argue that these laws provide valuable information to facilities and residents that may not otherwise be readily accessible to them. It would appear that registered sex offender notification laws provide valuable personal safety information to operators, residents, and their families.
Opponents of these laws cite obvious privacy issues and point out that most sex offenders in LTC facilities are not predatory and had convictions decades ago. Thus, those residents are potentially “outed” as sex offenders when they may never pose any real threat to residents or staff. Therefore, in the absence of any real risk, these notification laws could stigmatize the resident and create fear and possibly hysteria when the incidence and risk of harm may be very low.
LTC facilities need to develop or review their policies pertaining to admission, notification, and potential discharge of RSOs in the resident population. As many operators will attest, the best time to prevent RSOs from living in an LTC facility is at admission. Nevertheless, it may be difficult for a facility to outright ban the admission of any RSO because of due process concerns and whether the resident’s deviant behavior is a result of a mental disability.