Neglecting our Elders: The State of Registered Citizens in Nursing Homes
Derek W. Logue of OnceFallen.com
November 21, 2016

INTRODUCTION

Death is an inevitable part of life, and as registered citizens, we are probably more concerned with the end of our lives than the average American. We recognize we suffer discrimination in so many places, so it doesn’t surprise us (but indeed worries us) that registered citizens face discrimination even if that day comes we are no longer capable of taking care of ourselves. The stigma of forced registration as “sex offenders” can even impact the amount of (or quality of) care will into the twilight of our lives. This article discusses the difficulties registered citizens face while seeking assisted-living, nursing home, or hospice programs.

WES BLEDSOE AND “A PERFECT CAUSE” (OF PREDATOR PANIC)

As with the majority of legislation directed at individuals forced to register as sex offenders, legislation regulating registered citizens are inspired by a single rare, high-profile but tragic case. There is an assumption that individuals convicted of sex crimes pose a high risk of re-offense, yet studies have consistently shown re-offense rates are far lower than what was reported in the media. [1] Furthermore, studies of showing that the chances of recidivism decreased by age. Canadian researchers Harris and Hanson found recidivism rates of individuals aged 50 and over is about half the rate of individuals aged less than 50 years old. [2]

Much of the publicity over registered persons in nursing homes originates from an Oklahoma-based nursing home advocacy group called “A Perfect Cause,” which claims as its mission statement “preventing needless deaths while protecting the rights of citizens against corporate greed and negligence.” [3] A Perfect Cause advocates for background checks on residents and public notification when a sex offender is admitted to a facility. There is nothing inherently wrong with the noble goals and mission of this organization. However, A Perfect Cause has offered the public an imperfect study, and has publicly overstated the facts in their own studies.

In media interviews, A Perfect Cause founder Wes Bledsoe has claimed a study by his group “documented more than 50 crimes allegedly committed by 44 sex offenders and other convicted criminals living in long-term care facilities from 2002 to 2006, including sexual assaults, rapes and four murders.” [4] The implication here is there were 50 sex crimes committed by sex offenders in nursing homes. However, in the actual study, only 30 registered offenders were listed as having committed crimes; and of the crimes listed, only 29 were crimes of a sexual nature. The study does not mention how many of the sex crimes were committed by other types of criminal offenders noted in the study. [5]

In other words, Bledsoe’s study finds an average of seven sexual crimes per year were committed in nursing homes which, while unacceptable, is a miniscule number compared to the estimated 1.5 million individuals currently residing in nursing homes. [6] (That is one in 214285.7 residents).

A 2006 Government Accountability Office (GAO) study found “each incident of resident abuse committed by offenders living in nursing homes—even if isolated or infrequent—is of concern. However, while long-term care facilities may learn that certain of their residents are sex offenders or parolees through required community notification or through other means, our findings did not indicate that residents with prior convictions are more likely than other residents to commit abuse within these facilities. Absent such evidence, it may be more appropriate to focus on residents’ behaviors versus their prior convictions when assessing the potential for committing abuse.” [7]

Focusing on “regulating” the small number of registered citizens living in nursing homes would be wasting resources on a population whose chance of offending is extremely small.

NURSING HOME LAWS ACROSS THE USA

In October 2016, the Dayton Daily News ran a series of articles  focusing on registered citizens in nursing homes. The report found that a number of states have laws specifically dealing with registered citizens living in nursing homes.

“California: If a person on the sex offender registry  is being released into a nursing home, the Department of Corrections or other government agency must notify the home. Otherwise, the registered offender must self-report before becoming a client of any care facility. Homes must notify all residents and employees.

Illinois: Nursing facilities must do a “needs” screening prior to admission that includes a mental evaluation and a criminal background check. That assessment is reviewed by a forensic psychologist who creates an “Identified Offender report” detailing risk level and security concerns. That report goes to the home, local police, an ombudsman and the Department of Public Health, which must track offenders in nursing homes and report to lawmakers annually. Sex offenders can’t have roommates in care facilities.

Iowa: A bill to require notification of nursing home residents about sex offenders died in legislature. Another to create a specialized facility for Tier II and Tier III offenders was introduced in 2015 but hasn’t moved out of committee.

Massachusetts: Law bars anyone classified as a level III offender — based on a risk assessment — from living in any care facilities. At least one resident has successfully challenged this law in court.

Minnesota: Registered offenders must notify nursing homes of their status. Additionally, a law enforcement officer must prepare a “fact sheet” for the facility stating the offender’s criminal history, risk level, and profile of likely victims. That sheet must be distributed to all residents if the offender is admitted.

Ohio: Nursing homes must check the sex offender registry before admitting a new resident and must notify other residents or their family members about the care plan for that offender.

Oklahoma: Passed law in 2008 to create specialized nursing home for offenders, but no bids were submitted and it was never built. Notification law requires homes to check registry, notify the state health department if an offender is moving in and post conspicuously a notification that a resident is a registered sex offender.

Oregon: Registered sex offenders must inform a nursing home of their status prior to admission.

Virginia: Care facilities must register with the state police to receive notifications if a sex offender moves within the same or contiguous ZIP code; determine prior to admission if a potential resident is a registered offender; and have every resident sign an acknowledgement that they know how to check the registry. There is no law that requires a home to tell residents about offenders being admitted. In a fact sheet, the department of health said, ‘If a facility determines that a sex offender is already a resident of the facility, affirmative notice to other residents is not required by law; nor is it advised.’” [8]

The Oklahoma nursing home law was the most problematic  of all state laws governing registrants in nursing homes. In 2008, the Oklahoma legislature passed HB 2704, which would allow to state to create a “separate but equal” nursing homes specifically for registered citizens. “The State Department of Health shall initiate a request for proposal for the operation of a stand-alone long-term care facility for sex offenders who are assigned a numeric risk level of II or III as provided in the Sex Offenders Registration Act. The request for proposal shall set forth surveillance and security specifications providing for heightened security of residents to protect the public and residents of the facility.” [9]

Wes Bledsoe wrote a press release applauding this bill, writing, “”Enactment of this bill will directly reduce murders, rapes, sexual and physical assaults against vulnerable long-term care residents; as well, it serves as a model for the federal government and state legislatures across America.” [10]

Immediate criticisms likened the new law to prison for elderly nursing home patients. Wes Bledsoe used a euphemism to evade admitting a separate long-term care facility specifically for registered citizens has the potential to become prisonlike in nature, especially in light of other catchphrases like “heightened security” and “specialized staff training”:

Kolus: Is there the potential for this facility to resemble a prison with people  being segregated from each other and, figuratively, “on lock down?”

Bledsoe: I think it’s an excellent question and one that all of us need to work on. I want to oppose the idea that this is a prison. It’s not. It’s a LTC facility that is providing what I refer to as ‘appropriate resident care for a specific population.’” [11]

Wes Bledsoe’s description of the “separate but equal” facility sounds suspiciously like prison. This argument is solidified by the passage of OK SB 578 in 2015, [12] which transferred responsibility for establishing a “separate but equal” facility from the state’s Department of Health to the Department of Corrections. Bledsoe went on record supporting SB 578. OKC Fox 25 reported the nursing home would house freed registrants in the nursing home “labeled moderate to high risk” together with incarcerated sex offenders. [13]

Attorney David Slane told FOX 25 this was a horrible idea. “He says you can’t lump all sex offenders with a variety of circumstances, into one category. ‘We always have to be worried about it there going to be inmate on inmate attacks. You can’t lump them all into one,’ said Slane. Slane says while there are rare instances of sexual assault and more does need to be done to insure safety in nursing homes, a stand-alone nursing home would be a big drain on taxpayer dollars and resources… He says this isn’t the route to go. ‘You could have staff that trained to deal with these types of individuals to spot any kind of action that might be called questionable. Maybe we could put incremental changes to strengthen what we’re already doing to make it more safe,’ said Slane.” [14]

SEPARATE BUT UNEQUAL

Considering our current fear and loathing of people labeled “registered sex offenders,” the potential for abuse and vigilante violence has heightened through stigmatization which leads to ostracism. The Dayton Daily News reported that registered citizens in Ohio nursing homes are in facilities with lower quality ratings than patients who were not on the public registry. “The newspaper’s investigation found nearly half of the Ohio homes that currently house sex offenders have a rating of 1 (on a 5-point scale) on the Medicare.gov nursing home comparison tool. Lower ratings indicate repeated health and safety citations on state inspections and can indicate inadequate staffing levels.” [15]

Not helping matters is the barrage of fearmongering stories from the news media; among the articles in the Dayton Daily News series on this subject is an interactive map of every nursing home in the state housing a registered citizen, along with the following tagline: “Ohio has a duty to protect its most vulnerable citizens, many of them frail or disabled. But safeguards enacted to keep sex offenders in check are more difficult to enforce when the predator is down the hall. A Dayton Daily News investigation found 136 sex offenders are living in 43 nursing homes in Ohio, where an intricate safety net is supposed to balance the needs of all patients with a responsibility to shield them from danger.” [16] The implication of this article is any nursing home open to registered citizens is a dangerous place. To further stir the fear, the same outlet wrote an article proclaiming that some registrants were in violation of state residency restriction laws (failing to consider the fact residency restrictions do not apply to anyone convicted before July 30, 2003), inadequate registration and community notification efforts, and added a couple of anecdotal examples to imply all registrants are an imminent danger in nursing homes. [17]

Community notification and the stigma attached to register citizens makes finding suitable assisted-living programs extremely difficult for individuals forced to register. One Ohio registrant reported that he could not find a single nursing home close to his family (just south of Toledo) and was admitted to a facility in Columbus instead (roughly 140 miles away). While he complained about the quality of service, conditions and the food (“I had better food in prison”), the registrant felt lucky to even have a home. [18]

The Dayton Daily News story reported heavy criticism of separate but equal facilities: “If a facility says we’ll take the sex offenders and we’re going to put them in our locked unit, well if the residents in the locked unit have dementia and are less able to report and prevent and defend themselves, I would think that would not be the right choice,” said Bev Laubert, Ohio’s Long-Term Care Ombudsman. The ACLU of Ohio said separate, locked facilities are not a practical solution because the people housed there would be kept further from their home, friends and relatives. Gary Daniels, chief lobbyist for the ACLU, said the offender database should be purged to eliminate the profiles of people who no longer pose a danger to others. “What this really calls for is a change in our statewide sex offender laws,” he said. “There should be allowances … flexibility in the law that allows somebody, perhaps a judge, to go back in and revisit.” [19]

The Ohio officials have reason for concern. The state of Minnesota also built a nursing home for “aging convicts and sex offenders.” This facility took over five years and $8.8 million to build, and in a safety inspection conducted months after a ribbon cutting ceremony was held, numerous safety code violations impeded the opening of the facility. Among the 14 fire-code violations was a hallway serving the building’s north wing that was too narrow to meet fire codes and an automated door-lock system that locked the facility’s doors when fire alarms went off. State Rep. Terry Morrow, DFL-St. Peter, heavily criticized the violations, stating, “Shouldn’t DHS know whether mattresses comply or not before they order them, that curtains comply before they install them? Why didn’t you check first? You and I would have to think, ‘Wait, the doors are locking when the fire alarm system goes off? We shouldn’t be ordering this system?’ A grade-school kid would know that you can’t have doors lock and remain locked when the fire alarm goes off.” [20]

The fearmongering produced by Wes Bledsoe’s group and news media reports  like the Dayton Daily News series in October 2016 fuel legislation and business policies that hinder quality care for individuals who carry a label despite not being a threat to the public. In 2008, a nursing home in Delaware allowed a registered citizen to choke to death on a sandwich; it was noted on his chart the man could not eat solid food due to swallowing difficulties (the result of his Huntington’s disease). This man was in a state of bureaucratic limbo; as a result of his status as a registered citizen, the state of Delaware refused to transfer the ailing man to a standard long-term care facility. [21] In September 2016, the Courthouse News Service reported a former doctor suffering from end-stage Alzheimer’s disease is fighting his removal from a hospice because it is too close to a school. [22]

Finding a home for registrants in need of care is difficult, and just as in the case of residency restrictions, registrants tend to concentrate in the few homes willing to accept them. “In Ohio, about 44 percent of the 136 ‘sex offenders’ living in nursing homes reside at just five facilities — two of them with an overall rating of 1 (far below average) or 2 (below average) on the 5-point scale Medicare.gov uses to compare nursing homes. Two others were given a rating of 3 (average) and one received a 5, the highest rating.” [23] Of the approximately 960 Ohio nursing homes, [24] only 43 house a registrant (4.5%), and nearly half live in just five facilities (0.5% of available facilities).

The issue of placement for registrants in need of nursing homes is only expected to worsen as an increasing number of registrants will reach their 70s and beyond, especially in states with lifetime reporting requirements. Florida’s residency restrictions stand in the way of obtaining adequate services, the few transitional programs are equipped to handle those in need of round-the-clock care, and those who work with registrants are fearful of the future. States are enforcing strict registration requirements that are proving problematic for those who are getting forgetful due to dementia/ Alzheimer’s or are incapable of traveling to the registration office on their own. [25]  

One large unconsidered consequence of the nursing home battle concerns what to do with registrants who ultimately be denied services because current nursing homes would fear the negative publicity associated with having a registered citizen as a resident. Bledsoe’s group “A Perfect Cause” had admitted that a segregated nursing home would likely cost more than usual to address the perceived “special needs” of registered citizens. [26] The average nursing home costs roughly $4 million-$5 million on average, [27] but a special segregated home would likely cost more. Lawsuits and the increased likelihood of experiencing vigilante violence due to community notification are also unconsidered consequences and should be addressed.

LEGAL CHALLENGES

Because this is a relatively narrow issue, with few registered citizens living in nursing homes, there aren’t many legal precedents on this issue.

In John Doe v. Police Commissioner of Boston, et al., 460 Mass. 342, “This court concluded that G. L. c. 6, § 178K (2) (e), which prohibits a level three sex offender from establishing living conditions within, moving to, or transferring to a long-term care facility, infringed on the plaintiff sex offender’s protected liberty and property interests and violated, as applied to him, his right to due process, in that the statute failed to provide for an individualized determination that the public safety benefits of requiring the plaintiff to leave the rest home where he resided outweighed the risks to the plaintiff of such a removal.” [28] In other words, the Court did rule on whether or not the act of denying nursing home service was unconstitutional, but was denied an individual risk assessment before being rejected.

CONCLUSION

Despite the dubious claims of victim industry advocate Wes Bledsoe and his ironically named organization “A Perfect Cause,” there is no evidence that registered citizens pose a unique threat in nursing homes. However, the focus on a statistically infinitesimal issue has resulted in a number of hastily and ill-advised pieces of legislation. Partly as the result of the stigma of the “sex offender” label and partly due to Bledsoe’s crusade and certain members of the media, registered citizens are more likely to receive poorer quality service, if they are fortunate to receive any degree of service at all. Those of us concerned with this issue should keep close tabs on Bledsoe and his efforts to segregate registered citizens in nursing homes.

REFERENCES

  1. US Dept. of Justice, Bureau of Justice Statistics (2003). “Recidivism of sex offenders released from prison in 1994,” a 3.5% re-conviction rate after three years; State of Ohio Department of Rehabilitation and Correction. “Ten-Year Recidivism Follow- Up Of 1989 Sex Offender Releases,” finds 8% recidivism after 10 years; California Sex Offender Management Board (June 2008) “RECIDIVISM OF PAROLED SEX OFFENDERS—TEN (10) YEAR STUDY,” 3.38% after 10 years.
  2. Harris, A. J. R., Hanson, R. K. (2004) Sex Offender Recidivism: A Simple Question. http://static99.
    org/pdfdocs/harrisandhanson2004simpleq.pdf
  3. http://www.aperfectcause.org/mission.html
  4. Appleby, Julie. “Lawmakers look at sex offenders in nursing homes.” USA Today. 24 July 2008. Web. <http://usatoday30.usatoday.com/news/nation/2008-07-24-sexoffender_N.htm>
  5. “Predators in America’s Nursing Homes.” A Perfect Cause, 2004-2006. Web. <http://www.aperfectcause.org/APC-US_CongressReport-CriminalOffendersOffensesInLTC-April2006.pdf>
  6. Bercovitz, Anita M.P.H., Ph.D.; Decker, Frederic H. Ph.D.; Jones, Adrienne; and Remsburg, Robin E., Ph.D., R.N., G.C.N.S.-B.C. “End-of-Life Care in Nursing Homes: 2004 National Nursing Home Survey.” National Health Statistics Reports, No 9: 8 October 2008. Web. <http://www.cdc.gov/nchs/data/nhsr/nhsr009.pdf>
  7. LONG-TERM CARE FACILITIES: Information on Residents Who Are Registered Sex Offenders or Are Paroled for Other Crimes, GAO, March 2006, p.26.
  8. Wendell, Katie. “Lawmakers: Sex offenders in nursing homes issue begs for answers.” Dayton Daily News. Cox Media Group. 21 Oct. 2016. Web. < http://www.daytondailynews.com/news/lawmakers-sex-offenders-nursing-homes-issue-begs-for-answers/ZirXSbeC0nIcdj7ykPkQqO/>
  9. http://www.oklegislature.gov/cf_pdf/2007-08%20FLR/sflr/hb2704%20sflr.pdf
  10. Bledsoe, Wes. “Nursing Home for Sex Offenders Becomes Law, a First in America.” PR Newswire.com,  PR Newswire Association LLC. 9 June 2008. Web. < http://www.prnewswire.com/news-releases/nursing-home-for-sex-offenders-becomes-law-a-first-in-america-57424332.html>
  11. Kolus, Kevin. “Much ado about sex offenders.” Long-Term Living Magazine. 13 July 2008. <http://www.ltlmagazine.com/article/much-ado-about-sex-offenders>
  12. Text at https://legiscan.com/OK/text/SB578/2015
  13. Mills, Kylen. “OK Senate considering nursing home for sex offenders.” KOKH Fox 25. 5 April 2015. Web. <http://okcfox.com/archive/ok-senate-considering-nursing-home-for-sex-offenders>
  14. Ibid.
  15. Supra., Wendell, “Lawmakers”
  16. “SPECIAL INVESTIGATION: Where are Ohio sex offenders living in nursing homes?” Dayton Daily News, Cox Media Group. 2016. Web. < http://www.mydaytondailynews.com/sex-offenders-nursing-homes/map/>
  17. Wendell, Katie. “Lax rules, missing information put nursing home residents at risk.” Dayton Daily News, Cox Media Group. 14 Oct. 2016. Web. <http://www.mydaytondailynews.com/news/news/sex-offenders-in-ohio-nursing-homes/nsmwC/>
  18. Wendell, Katie. “Convicted rapist says his care hurt by his offender status.” Dayton Daily News, Cox Media Group. 15 Oct. 2016. Web. < http://www.mydaytondailynews.com/news/news/convicted-rapist-says-his-care-hurt-by-his-offende/nsqzK/>
  19. Ibid.
  20. Kimball, Joe. “State nursing home for sex offenders to open three years late.” MinnPost. 30 July 2010. Web. <https://www.minnpost.com/political-agenda/2010/07/state-nursing-home-sex-offenders-open-three-years-late>
  21. eAdvocate, “DE- Ailing sex offender chokes to death at Dover clinic.” Sex Offenders: Murdered Archives. 25 Feb 2008. Web.  <http://on-murders.blogspot.com/2008/02/de-ailing-sex-offender-chokes-to-death.html>
  22. Kapnick, Izzy. “Sex Offender Fights Removal From Hospice.” Courthouse News Service. 9 Sept. 2016. Web. <http://www.courthousenews.com/2016/09/09/sex-offender-fights-removal-from-hospice.htm>
  23. Supra, Wendell “Care hurt by status”
  24. Estimate at https://www.odh.ohio.gov/odhprograms/ltc/nurhome/nurhome1.aspx
  25. Gorny, Nicki. “The challenge of elderly sex offenders.” Ocala Star Banner. 20 Nov. 2016. Web. <http://www.ocala.com/news/20161120/challenge-of-elderly-sex-offenders>
  26. Kolus, “Much Ado”
  27. http://www.reedconstructiondata.com/rsmeans/models/nursing-home/
  28. Text at http://masscases.com/cases/sjc/460/460mass342.html