Admission of sex offenders to senior living facilities

As senior living communities work to prevent resident abuse by employees, contract staff, and others who provide onsite care, a new question has arisen as to how communities protect seniors from other residents of the community who may be sex offenders. The topic is demanding more and more consideration, as the Center for Medicare and Medicaid Services recently added emphasis to resident abuse protections.

• Legislation varies between states. Some states have considerable language about the protection of seniors from abuse, with sexual abuse falling within a broad definition. Some states define the elderly as vulnerable people[1], just as they define children, and some require sex offenders remain at least 1000 feet from a vulnerable person at all times. Some states define residents of skilled care facilities as vulnerable, while not defining residents of Assisted Living (AL) or Independent Living (ILs) the same. Each state is different.
  
  
• Some legislation requires a facility that admits registered sex offenders/violent felons to have a plan in place that will ensure residents, employees, family members, and other visitors to the facility are protected from abuse. Often a plan requires a facility provide:
  
  
  • 24/7/365, 1:1 monitoring, where “within eyesight”, does not meet the definition of monitoring
    
    
  • A diligent commitment to promptly address behavioral issues
    
    
  • Signed pre-admission agreements defining behaviors that will result in transfer from the facility
    
    
  • Steps required for holding an offender-resident while awaiting placement and transfer. These steps and others help ensure the resident and staff have the same understanding - that an emergency response plan is in place should it be needed, and that the plan affords the greatest opportunity to keep everyone in the building safe.
    
    
  • Each of these steps are important because there have already been multi-million-dollar judgements against facilities for failure to protect others from abuse specifically perpetrated by known offenders. The fact an offender-resident may have dementia or even live in a locked dementia unit, is not a fact courts have given special consideration to.

• Arguments have been made that being a felon and/or sexual abuser is not a “protected class”, meaning that the nature of a past conviction affords them no special rights, such as admission to a senior living facility, and refusal by a facility to admit a sex offender/felon is not considered discrimination. What is important in avoiding discrimination charges on other grounds, is to be consistent in whatever policy decision you make. Once the decision is made, it must be applied consistently from that point forward.[2] States are working hard to come up with a solution for housing elderly offenders, some of which are considering dedicated facilities/homes for residential placement.

• Notification requirements vary by state as well. Some states require residents, family, employees and visitors be made aware that a felon and/or sex offender is a resident of the facility, and also require the facility to publish their safety plan to protect anyone on the premises from abuse. Some courts have found nursing homes to have done an inadequate job in notifying others and ruled that, “Failure to notify, is failure to protect.”[3]

• It is generally recommended that facilities allowing admission of offenders ensure notification information is in writing, provided to current residents, and that prior written notice be given to all prospective residents, allowing them sufficient time to consider other options. It has also been suggested that this information be included in the Resident Admission Agreement, so proof of notification and adequacy of the safety plan are not in dispute.

• The Centers for Medicare and Medicaid have established resident background checks as a requirement, thus removing a facility’s defense of a facility not having known someone’s offender status. This places full accountability for abuses directly on the owner/administrator/leadership.[4]

• Legislators and regulatory entities go to great lengths to ensure owners and operators of senior living facilities are clear about the expectation that exists, “It is a resident’s right to be of free of and protected from all forms of abuse”. There are significant training and documentation requirements to ensure facilities demonstrate their actions to comply. Failure to comply with these mandates can place a facility’s licensure in jeopardy, without consideration of any legal actions taken by a resident, family, employee, or visitor, alleging abuse occurred.
• Consideration must be given to the facility’s proximity to a school, daycare, or park, where sex offenders are prohibited from being within so many feet. Each state has statutory limits for sex offenders, so it is important you check your individual state’s requirements.

• Depending upon the level of a sexual crime, some states have requirements that communities be notified of the intent a sex offender has to move into or near their facility. Other states have no such requirement. The only way a facility may know if they already have sex offenders admitted to their facility is to conduct a Sexual Background Registry check on all current residents, if one was not done at the time of admission.

• Again, depending upon the level of past offenses, offenders can be required to update their domicile annually, or at court-ordered frequency. Some facilities have been disheartened to find their commercial address published within the Sex Offender Registry.

Another consideration is the impact on census due to seniors choosing other facilities, and the potential to lose employees who choose not to work with sex offenders.⁵ This issue is complex and currently left to each state to decide. There is legislation already enacted and legislation left to enact, and each state is at a different point in addressing the matter. It is of utmost importance you check with your own legal counsel to ensure you understand existing laws, those currently proposed, and the implications of any decision you come to.

References

1. CMS, Appendix PP, 483.12 (b)(5) Freedom from Abuse, Neglect, and Exploitation
2. ConElder Law - When a Sex Offender Resides in Your Health Care Facility: Know Your Rights and Obligations, accessed 2/27/2023 conaelderlaw.com
3. Nursing Home Law Center – As More Sex Offenders Make Their Way Into Nursing Homes, Are Facilities Exposing Themselves to Increased Liability? Accessed 02/28/2023
4. Healthcare Finance News, Sex Offenders Living in Nursing Homes, 3/5/2012
5. Robert Carter Law – New Law Requires Notification to Nursing Home Patients When Sex Offenders are Admitted  www.nursing-home-neglect.com, Accessed 2/28/2023