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laws regarding criminal background in nursing homes

laws regarding criminal background in nursing homes

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Published by ThinkProgress
State Policies for the Residency of
Offenders in Long-Term Care Facilities:
Balancing Right to Care With Safety
Donna Cohen, PhD, Teresa Hays, MPA, and Victor Molinari, PhD
State Policies for the Residency of
Offenders in Long-Term Care Facilities:
Balancing Right to Care With Safety
Donna Cohen, PhD, Teresa Hays, MPA, and Victor Molinari, PhD

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Published by: ThinkProgress on Jun 27, 2014
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State Policies for the Residency ofOffenders in Long-Term Care Facilities:Balancing Right to Care With Safety
Donna Cohen, PhD, Teresa Hays, MPA, and Victor Molinari, PhD
The presence of residents in long-term care facilitieswho are registered sex offenders, other predatoryoffenders, parolees, or inmates transferred by correc-tional authorities is controversial and has raisedconcerns about how to care for this potentially dan-gerous population who may jeopardize the safetyof others. Although the present offender populationappears to be small, it is likely that demographic andeconomic pressures will increase its size. Since 2004,14 states have passed legislation about placement ofsex and other offenders in facilities and 5 have imple-mented non-law policies. Because legislation is rela-tively recent, it is not possible to evaluate bestpractices at this time. Research should be a priorityto determine best policies and practices to balancethe right to care with safety.
 (J Am Med Dir Assoc2011; 12: 481–486)
Keywords: Criminal offenders; nursing homes; assis-ted living facilities; safety; state policies
Long-term care facilities have been increasingly challengedby the admission of potentially dangerous individuals withcriminal backgrounds who need long-term care but may bea threat to the safety of other residents, staff, and family mem-bers.Thispopulationischaracterizedbyheterogeneity,includ-ing registered sex offenders, offenders on parole or probationfor nonsex violent crimes, prison and jail inmates transferredby correctional authorities or the courts, violent offendersfound incompetent to stand trial, and convicted felons.Because the residency of offenders is controversial, theobjectives of this article were to review state policies andpractices dealing with the admission and care of residentswith offender backgrounds and to suggest recommendationsfor future consideration. Study methods included a reviewof state legislative Web sites and interviews with staff inaging, health, law enforcement, corrections, and otheragencies in the 50 states and District of Columbia to deter-mine whether this issue is a concern and, if so, what actionshave been taken or are pending.Although persons who have been arrested, convicted, orincarcerated for violent crimes carry a risk of violence,
noresearch has been conducted on their dangerousness in com-munity long-term care facilities. The offender population hasarighttoreceivecare,butitisreasonabletoassumethatsomemay pose safety risks. The type and history of offense(s), theseverity of medical problems, disability, mental illness, his-tory of substance abuse, and disruptive behavioral problemsare among those factors that would affect a facility’s decisionabout itsability tocare foroffenders.However,littleisknownabout best practices and policies for risk assessment and abuseprevention for this population in long-term care settings.This is the first national review of state policies dealingwith the offender population.
 National scrutiny of sex offenders and parolees in long-term care facilities was the f ocus of a Government Account-ability Office (GAO) report
following several investigationsby an Oklahoma-based disability and elder rights advocacyorganization.
The GAO used the Federal Bureau of Investi-gation’s National Sex Offender Registry to identify 683 regis-tered sex offenders living in nursing homes and intermediatecare facilities for persons with mental retardation (ICFs-MR)during 2005, representing 0.05% of the 1.5 million residentsof nursing homes and ICFs-MR. Approximately 88% of thesex offenders lived in nursing homes. Fifty-seven percent of sex offenders in nursing homes were younger than 65, com-pared with 10% of the overall nursing home population,and 30% were younger than 50. Ninety-nine percent of all
University of South Florida, Tampa, FL (D.C., V.M.); L-3 Communications/D.P.Associates, Jacksonville, NC (T.H.).This work was supported in part by AARP. None of the authors have anyfinancial interests or conflict of interest.Address correspondence to Donna Cohen, PhD, Department of Aging &Mental Health Disparities, Louis de la Parte Florida Mental Health Institute,College of Behavioral and Community Sciences, University of South Florida,Tampa, FL 33612. E-mail: cohen@fmhi.usf.edu
2011 American Medical Directors Association
BRIEF REPORT Cohen, Hays, and Molinari
registered sex offenders were males, which is similar to thegeneral population.Because a national registry of parolees does not exist, theGAO analyzed parolee databases from 8 states for the period January to September 2006. Atotalof 204 paroleesconvictedofnonsexoffenses were found inlong-termcare facilities,andthe most common crimes were burglary, assault, murder, ordrug-related offenses.Despite a history of public pressure to create legislation toconfine sex offenders in prison, restrict residency, and moni-tor sex offenders upon reentry to the community,
access tocommunity long-termcarehasnotbeenaseriousconcernun-til recently. The GAO report suggests that the number of sexoffenders and parolees in long-term care facilities is not large,butthenumbersmay increase inthefuture withthegrowthof the aging population of prison inmates and the increasingprevalence of chronic illness and disability. Correctional sys-tems will continue to be pressured to find better ways to man-age the needs of  these inmates within and outside thecorrectional system.
 Noteveryonewithacriminalbackgroundisnecessarilydan-gerous, but the presence of offenders who may be potentiallydangerous creates complex challenges for state agencies andlong-term care facilities.
These include identification of offenders, risk assessment, safety planning procedures,notification, management, expedited discharge procedureswhen residents become a serious threat, and communicationamong state agencies and long-term care facilities. Organiza-tional, economic, ethical, and legal concerns are associatedwith these issues.At the moment, there are no documented best proceduresand practices for the long-term care of persons with offenderbackgrounds, and this report is the first national study of statepolicies and rules for dealing with this population.
Statesvaryconsiderablyinthewaystheyrespondtothead-mission and residency of long-term care residents with of-fender backgrounds. Measures range from no action toinformal discussions and/or state workgroups, to non-lawpolicies and legislation. Since 2004, 14 states have passedspecificlegislation(Table1).Eightofthesestates(California,Louisiana, Maryland, Massachusetts, Nebraska, Oregon,Rhode Island, Virginia) only specified sex offenders, whereas6 states (Arkansas, Illinois, Minnesota, North Dakota,Oklahoma, Utah) included both sex and other violent of-fenders. Another 5 states (Idaho, Ohio, Texas, Washington,West Virginia) had instituted non-law policies.
Offender Long-Term Care Legislation
Table1summarizeshowstatelegislationvariedwithregardto the types of facilities covered, mandated criminal back-ground checks, preadmission screening requirements, notifi-cation of residents and families, requirements for treatmentand abuse prevention plans, and state agencies involvedwith facilities. Because 4 states had detailed legislation aboutthe processes involved, more specific information issummarized in the following sections.
HouseBill(HB) 4785madeIllinois thefirststate torequirecriminal background checks for all residents. Facilities mustrequestthemwithin24hoursofnewadmissions,andifincon-clusive, facilities must arrange for fingerprint checks unlesswaived by the Department of Public Health (DPH).Ifanindividualhasacriminalrecord,facilitiesmustfaxthename and information to DPH for a criminal history analysis.Results must be given to the facility, the local police chief,and the state ombudsman. Facilities have the right to declinenew admissions or initiate involuntary discharge proceedingsif they cannot safely manage these residents.DPH is responsible for developing plans to monitor resi-dents with offender backgrounds, and the criminal historyanalysis must be placed in the resident’s care plan. Privateroomsarerequiredforsexoffenders.DPHmusttrackthenum-berofoffenders andreport annuallytotheGeneralAssembly.Senate Bill 326 is comprehensive legislation followinga task force report to the governor that addresses safety issuesand substandard care, including the need to improve theprocess and procedures mandated by HB 4785.
The billenhances preadmission screening, authorizes the develop-ment of a dangerousness assessment, and improves the back-ground check procedures.
Applicantsmustself-disclosetheirstatustothefacility,andthe law enforcement authority or corrections agent must no-tifythefacilityafter theiradmission. Ifoffendershavenotdis-closed their status, they can be discharged immediately whenthey are identified. Under federal nursing home certificationregulations, facilities must give offenders individual noticeof their appeal rights, but an appeal does not delay discharge.Facilities must specify criteria to admit or reject offenders,conduct a risk assessment, and develop individualized abuseprevention plans to protect other residents. In 2008, theDepartment of Corrections (DOC) developed a policy toestablish screening and reporting procedures for the manage-mentofpredatoryoffendersinhealthcarefacilitiesandnursinghomes. Offenders should be physically separated from otherresidents,andifnotpossible, bein a single room orhaveregis-tered sex offenders as roommates. DOC field services agentsmust supervise offenders under specific guidelines.
HB 1963 requires DOC to immediately notify the Depart-mentofHealth(DOH)aboutanypersonregisteredasasexorviolent offender seeking placement from a DOC to a commu-nity long-term care facility. DOH must then notify the long-termcarefacilitywherethesexoffenderisseekingplacement.DOH must disseminate rules requiring long-term carefacilities to determine the registration status of prospectiveadmissions as well as current residents from local law enforce-ment authorities or the DOC. Once a long-term care facilityis notified that a registered offender is a new admission orresident, the facility must immediately notify DOH. Uponregistrationofanydesignatedoffender,locallawenforcement
 Cohen, Hays, and Molinari JAMDA September 2011
Table 1.
 Characteristics of Legislation Regarding Residency of Criminal Offenders in Long-Term Care Facilities Passed in 14 States
State Bill YearPassedFacilitiesCoveredBackgroundCheckNotificationof ResidentsTypes ofOffendersOther AgenciesInvolved
Arkansas HB 2258 2005 Nursing homes,rehabilitation facilities,or settings providinga similar level of careNo No Defendants convicted offelony or misdemeanorwho are chronically orterminally ill may beincarcerated in nursinghome detentionprogramDepartment ofCorrections andCommunity CorrectionsCalifornia AB 217, Chapter 466 2005 Nursing facilities No No Registered sex offenders Department of MentalHealth, Division ofAddiction and RecoveryServicesIllinois HB 4785 2006 (AmendedNursingHomeCareAct)Nursing homes,residential long-termcare facilitiesYes Yes Violent offenders andregistered/convictedsex offendersDepartment of PublicHealth, Office of HealthProtection, Office ofHealth Care and FamilyServicesSB 326 2010 Nursing homes,residential long-termcare facilitiesLouisiana HB 121/SB 272 Act No. 3412005Nursinghomes,long-termcare residentialfacilitiesYes No Sex offenders Department of Healthand Hospitals,Department of PublicSafety and CorrectionsMaryland HB 568 2009 HB 879/SB776 (Assisted Living andNursing HomeResidents ProtectionAct of 2010)Nursing facilities, assistedliving facilitiesYes Yes Sex offenders Sexual Offender AdvisoryBoardMassachusetts SB 386, Act 680 2005/2006MGL – Chapter 6,Section 178kConvalescent or nursinghomes, infirmariesmaintained in a town,rest homes, charitablehomes for the aged,ICFs-MRNo Sex offendersrequired toself-discloseNo Admission of Level 3 sexoffenders prohibitedDepartment ofCorrections
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