Sex Offenders in Care Facilities
Recently, an Oklahoma nursing home received a $1.3 million Immediate Jeopardy fine for failing to appropriately supervise a registered sex offender resident. The 69-year-old resident had been convicted as a sex offender in 2004, and was given a suspended 10-year prison sentence while at the facility because authorities believed the facility would provide “adequate supervision.” While conducting an on-site complaint survey, inspectors found the resident had been inappropriately touching male and female residents for months.
Unfortunately, this situation illustrates the importance for care facilities to develop good risk management practices regarding the decision to admit registered sex offenders, and/or discharge them once one is identified within their facility. To assist facilities, Kendall Watkins, JD, of the Davis Brown Law Firm, of Des Moines, Iowa offers the following advice.
- Know Your Regulatory and Legal Boundaries
Most states do not prohibit nursing facilities, residential care facilities and assisted living programs from making admission decisions based on a prospective resident’s sex offender status and do not prohibit a facility from refusing to admitting prospective residents based solely on this designation.
Facilities participating in Medicare and Medicaid must abide by anti-discrimination laws to protect prospective and current residents from unfair treatment or discrimination, because of race, color, national origin, disability, age, sex (gender), or religion. However, sex offender status is not protected under either Federal or most state laws.
A facility may have liability under existing anti-discrimination laws if they apply a sex offender check policy unevenly. For instance, a facility with a protocol to allow for the admission of female sex offenders, but deny admission to male sex offenders, or utilizes a protocol to only check sex offender status of male prospective residents, may open itself to a viable claim for discrimination based on gender.
- Routinely Check Sexual Predator Websites
Consistent with good risk management practices, facilities should adopt written policies that provide that all existing and prospective residents be checked through national, state and local websites, as available. If a prospective resident is coming from out-of-state, check those state sex offender registries as well. The FBI maintains the following website, which allows you to access the sex offender registries for all states and territories (and Indian tribes):
A facility that identifies a prospective resident on the registry should conduct additional investigation into the nature of the registry listing and the resident’s current physical and cognitive limitation before agreeing to admit the resident into the facility. Remember once a resident has been admitted, it may be difficult, if not impossible, to discharge the resident based on the regulatory restrictions relating to involuntary discharge.
- Consider Public Relations
Facilities should remember the public relations issues involved in admitting a prospective resident with a sex offender history. Because of the availability of sex offender registries, a sex offender’s residence in a long term care facility will likely be public knowledge. Future admissions may be adversely impacted when it is known in the community that a sex offender resides at a facility, and has caused employer-employee issues at some facilities.
- Discharge Restrictions
A resident’s status on the sex offender registry, by itself, does not give a facility the right to seek involuntary discharge of the resident. Federal and many state laws relating to discharge require a showing that a resident’s behaviors have negatively impacted the other residents. For example, Federal certification regulations applicable to nursing facilities allow a discharge if “the safety of individuals in the facility is endangered” (42 C.F.R. § 483.12(a)(2) [F201].
- Supervision Mandates
A facility or program that maintains a sex offender must provide appropriate supervision commensurate with the risk posed by the resident. This entails an obligation to analyze the risk posed by the resident’s placement on the registry, in determining the level of supervision and assistive devices required to monitor the resident. Where the criminal conviction involves acts against a minor, the facility should be alert in closely supervising residents when children are present.
Analysis must be undertaken to assess the resident’s risk for abusing other residents. The treating physician should be informed of a resident’s status on the registry and input solicited as to the physician’s assessment of the resident’s risk for committing abuse. For example, a resident on the registry who is now bed-bound may not pose the same risk or the same supervision requirements as an actively mobile resident. On the other hand, residents on the registry who now suffer from dementia or other cognition limitations may pose a higher risk, based on loss of inhibition or self-control. Residents determined to be at risk should have the problem identified on the care plan with interventions implemented to address the risk.
Interventions to maintain staff knowledge of a resident’s whereabouts may include the use of alarm systems to alert staff when a resident leaves his/her room to allow for close monitoring, fifteen minute recorded checks, or one-on-one monitoring, if justified.
- Other Criminal Histories
Like sex offender status, care facilities also can make admission decisions based on a prospective resident’s criminal history. If criminal history checks are going to be conducted, they must be conducted on all applicants. A resident with a criminal history does not automatically provide a facility the right to seek involuntary discharge, in absence of current behaviors that put other residents at risk for harm or impact their welfare.