Sex offenders in seniors housing facilities:
What you don't know can hurt you.

Imagine this:

It's a peaceful, sunny morning in your seniors housing community. You've just arrived in your office. Suddenly you hear the screech of car tires. You look outside and see a motorcade of state police vehicles pulling up – and no, it's not the governor making a surprise campaign stop.

Before you've had time to react, troopers march into your lobby and fan out down every corridor … posting official flyers … knocking on doors … notifying each and every shocked resident that YOUR COMMUNITY is home to a convicted sex offender.

And you were the last to know.

This is not a fictional scenario. In at least one state, troopers personally executed the notification mandates of a Megan's law-type statute by showing up unannounced in the lobby of a seniors housing facility.

"To call it a marketing nightmare only begins to describe the situation," said Alice Kush, a Chicago-based attorney who specializes in seniors housing law.

A ticking liability bomb

The insidious phenomenon of parolees and convicted sex offenders finding their way into the populations of nursing homes – either as residents or staff employees – is a crisis with few straightforward answers. Administrators, human resources managers, risk officers and corporate counsel must deal with a patchwork of state mandates, vague legal language and guidelines, not to mention their responsibilities to unsuspecting residents.

"There aren't enough Tums in the world for this issue," said Kush.

First, let's try to "wrap our minds" around the scope of the problem. Be advised: because of chronic underreporting, data limitations and privacy concerns, these statistics are just a snapshot. This is by no means the full picture.

• Advocacy and watchdog groups say as many as 800 registered, convicted sex offenders now reside in long-term care and assisted living facilities across the country.
• States with the highest number of sex offenders known to be residing in nursing homes are Texas, California, Illinois, Ohio and Florida.
• Since the 1990's, resident sex offenders have committed nearly two dozen rapes, murder and other crimes – that we know of.
• In several states, new laws requiring mandatory employee-background checks have revealed hundreds of ex-felons and sex offenders working on nursing home staffs.
• For example, Michigan flushed out hundreds of certified nursing aids with a total of 836 outstanding arrest warrants for drug and sex crimes. These were CNAs working directly with residents on a daily basis.

We could fill several more pages with similar bullet points …

Must-reading for every operator: the new GAO Report

The problem is so pervasive, a number of U. S. Representatives and Senators jointly directed the General Accounting Office to undertake a comprehensive study. The new GAO report was published in March, 2006. We at Thilman Filippini strongly recommend that you obtain and carefully read a copy.

The report – Long Term Care Facilities: Information on Residents Who Are Registered Sex Offenders or Are Paroled for Other Crimes – is available by going online to www.gao.gov/ and searching for Report # GAO-06-326.

Mandates and misconceptions …

What's the root of this issue? And from a Managed Risk standpoint, what specific steps can you take to stay ahead of it?

Generally, we're talking about those Medicaid- and Medicare-certified nursing homes – 20,000 or more – who accept placements through state health agencies, transfers from hospitals, etc. These facilities are home to a diverse population now estimated at 1.5 million women and men, including X-number of felons who've served out their sentences or parolees who have certified disabilities and other health issues.

Again quoting Ms. Kush: "Even criminals get older and need specialized, long-term care."

But sex offenders, unlike burglars or even murderers, are famously resistant to rehabilitation. Advancing age, declining health or even physical disability does not mean an individual is now "harmless."

Dozens of studies, backed by decades of law enforcement experience, have shown extremely high rates of recidivism. A former sex offender (almost 97% are male) can ply the straight and narrow for many years – to a point where even he is convinced his troubles are behind him – before an "opportunistic" situation presents itself and he is unable to resist, experts say.

Here we should highlight two very dangerous misconceptions:

It's natural to assume that now-elderly sex offenders committed their crimes in younger days. But don't believe it. One study found that of 49 registered offenders – all in their 80s or 90s – 47 were convicted of sex crimes after the age of 59.

It's also tempting to believe only elderly sex offenders reside in nursing homes. Again, not true. Another study in 2005 found 45.2% of 756 known offenders in nursing homes were under 60. Two were 19!

Since the enactment of Megan's Law in 1996, the federal government now requires states to have procedures for registering ex-cons and notifying a "community" whenever a sex offender takes up residency. But since the details of Megan's Law were left in the hands of individual assemblies, states have widely differing procedures.

What's more, a number of widely publicized incidents have prompted state and even county legislatures to enact "vulnerable citizens" laws to protect local nursing home residents from sexual predators.

In one of many examples, this month Suffolk County (New York) lawmakers are poised to enact an ordinance requiring nursing home operators to determine whether employees, residents and even volunteers are listed on a state's offender registry, according to the Long Island newspaper Newsday.

If a resident is found on the registry, operators would be required to notify every worker, resident and their families, or risk a $2,000 fine for each violation.

This action was spurred by the sexual molestation of an 84-year old woman by a 54-year old resident – a registered sex offender – who'd been convicted only four years earlier of raping a 60-year old woman.

By now you must be asking: how in the world did this man get into a nursing home? The answer is dishearteningly simple.

The convicted offender suffered a stroke two years ago and was discharged from prison. State officials and nursing home operators knew of his record, but weren't required to notify anyone. Everybody assumed he was now harmless. Wrong.

This is precisely the kind of high-liability situation for an operator that we alluded to earlier in this article.

Complicating matters even further, if you thought it was possible, is the fact that language in various statutes is maddeningly unclear. Just as states define "long term care" facilities differently for licensing purposes, vulnerable-citizens' statutes seldom make clear which facilities are covered. Assisted living, per se, is not mentioned in most laws. Nor are independent living communities.

All of this makes compliance a problematic but essential challenge.

"If you had only one federal law, you could probably write it on a single page," said Ms. Kush, "but the 50 different laws make it imperative for any nationwide operator to have a manual … a really well-thought-out set of guidelines."

Legal and practical considerations

Know your state laws, inside and out. What does your state require in terms of background checking, notifications and maintaining records?

Define your procedures down to the last detail – in writing – and designate the responsibility for background checking to a senior staff position. In other words, put someone in charge of this.

Familiarize yourself with individual state and U. S. Department of Justice web sites. They are easily accessed, free and generally helpful. Be aware that some states list only the most "heinous" sex offenders … others do not list offenders already in prison. This last point is critical since an offender may be discharged and placed before authorities have updated their listing.

No listings exist prior to 1990, when the first registration laws were enacted.

If a resident is found to be registered, it need not automatically mean a discharge or refusal to admit. Notify your staff and conduct an intensive behavior assessment. For the most part, there's actually a greater risk of violent behavior from persons with cognitive impairments or dementia than truly disabled individuals with criminal records. Use your professional judgment.

Perhaps the simplest piece of advice offered by Ms. Kush: Ask! Before a new resident is admitted, specifically ask if he (or she) has ever been convicted for a sexual offense. If this question is not a checkmark-box on your admissions paperwork, it should be. If the individual is suffering with cognitive difficulties, ask the legal guardian.

Above all, coordinate with your risk officer and corporate counsel.

"Common law dictates a basic duty to protect," said Ms. Kush. "Now there's a duty to check. In today's environment, with so much information widely available over the internet and elsewhere, the liability threshold is much lower."

For more on this issue, a good source is www.aperfectcause.org. This group provides reduced rates for checks through www.backgroundcheck.com.