Sex offenders pose liability risk when admitted for health care

Provider may be responsible if offender abuses others in facility

Health care facilities see a wide array of different types of people admitted for care, and not all of them will be the type you want to take home for dinner. Convicted sex offenders get sick and need long-term care just like everyone else, and that means you must be ready to respond when they are admitted to your facility. Failing to take appropriate precautions could result in the sex offender abusing someone on your property, and that would almost certainly result in a lawsuit.

The presence of sex offenders in health care facilities is gaining more attention across the country as risk managers and lawmakers realize that the aging population means more of those people now need long-term care. A 2006 report from the U.S. Government Accountability Office (GAO) stated that at least 700 registered sex offenders were living in long-term care facilities. Federal law requires all states to register sex offenders and to release information about their whereabouts when it is deemed necessary to protect others. Some states require that schools, churches, and neighbors be notified when a sex offender lives nearby, but the GAO investigation found that few require notification of long-term care operators or residents.

As more communities mandate notification, the burden then shifts to the facility. What response is allowed under the law, and what actions are necessary to protect other patients? The answer is not simple, but it is clear that health care providers have a responsibility to protect others when they are aware of the sex offender's status, says Robin Sax, JD, deputy district attorney for Los Angeles, who handles many sex crime cases. She points out that while the risk may be greatest in long-term care facilities, sex offenders can threaten patients in practically any health care setting.

Also, she says, risk managers can expect to see more sex offenders in their patient populations in the coming years. Mandated sex offender registration has become common across the country only in the last eight years or so, Sax points out, so many of those registered still are younger than the typical long-term care resident. As that population ages, more sex offenders are likely to be admitted for care, she says.

"This raises the question of what kind of liability you are going to have when they are admitted. We know that the rate of recidivism with these people is high, much greater than with other types of crime," she says. "So you have to worry about the other people in the home being potential victims, not just of the proximity, but because they often are a vulnerable population."

Train staff to minimize risks

Some states may allow a health care facility to deny admission to a known sex offender, sometimes on the basis that the facility is close to a school or other location that sex offenders must not live near. It also may be possible to have a policy prohibiting admission of sex offenders, Sax says.

"If you determine that this type of patient poses a risk that you are just not able to accommodate, then I would imagine you could deny admission to them," she says. "That would be by policy, not by law, and you're always going to be better off if it is a uniform policy across the board, not just denying admission to one particular person."

Helenemarie Blake, JD, a senior partner at the law firm of Fowler White in Miami, says resident-on-resident crime results in a number of lawsuits against long-term care facilities and other health care providers. Knowing that a person is a sex offender is the first hurdle, she says. She recommends conducting background checks on new patients, but Blake acknowledges that a background check usually takes too long when a patient needs admission.

"The one thing I always emphasize to my clients is personnel training," she says. "If you have staff that are trained to recognize dangerous situations, you can identify and prevent some crimes before they ever happen. That's going to be true whether you know the person is a sex offender or not."

Blake has seen lawsuits involving sexual predation in long-term care facilities, and her experience has shown her that the crimes do not always involve a relatively well sex offender who preys on a weaker resident. In many cases, the sex offender is developmentally disabled, she says.

"Patient rights are important, and a lot of times state laws make it clear that the developmentally disabled are allowed the right of sexual expression," she says. "But there can be a fine line between sexual expression and a sexual offense. That's the type of lawsuit we see from time to time. The allegations always involve lack of training for the staff and lack of supervision."

Defense verdicts are possible

The outcome of the case often involves how closely the facility followed its own policies and procedures, Blake says.

"There is a proliferation of these types of lawsuits because they have a great sympathy factor attached to them," Blake says. "They can involve scenarios that we all find tragic, and there can be a motivation to settle them, because the facility does not want more publicity for the event, regardless of whether they really could have done anything to prevent it."

Blake says, however, that some of the cases should not be settled. She has seen cases in which the facility did everything possible to protect patients by putting the sex offender near a nurse's station or security desk, trained the staff to watch that person carefully, and still the person managed to assault someone.

"If all the steps were taken appropriately, certainly we are comfortable taking these cases to trial," she says. "There are defense verdicts out there. You can win these cases as long as you can show that you did the right things and your residents' safety was your highest priority."

If the verdict goes the other way, however, the potential for liability is significant, Blake says. The sympathy factor with juries is huge, and so the cases tend to yield high verdicts, she says.

Must respond to sex offender status

If you do admit a known sex offender, you are obligated to mitigate the risk to others, Sax says. Placing the sex offender near a nurse's station is good practice, Sax says. Watching the patient carefully is the most important part of any response plan, and having the patient near the nurses is key, she says. Sax also recommends providing counseling for the sex offender resident. The counseling can reduce the risk of repeat offenses, she says.

A key step for a risk manager is to find out exactly what kind of crime the sex offender committed. State laws differ on what crimes result in registration, so you cannot assume that every sex offender is a child molester or rapist. Some people must register as sex offenders after being convicted of other crimes such as statutory rape or indecent exposure — not a good history but not the same as the more serious crimes.

"You can assess the risk by looking at the crime for which they were convicted and make adjustments accordingly," Sax says. "If they were convicted of sex crimes against a child, then you know you want to be especially vigilant about children who may be on the premises. Or if the person was convicted of a crime against adults, you can consider the people who live in the facility to be at risk."

You can notify staff of status

It is legal to notify staff and other patients about the resident's sex offender status, Sax says. A person's sex offender status is public information, available on a number of databases, so there is no privacy breach by letting others know that the person is a registered sex offender, she says. Whether you should notify patients may depend on the circumstances, but it is always a good idea to let your staff know, she says.

"Risk managers should develop a uniform policy about how to handle sex offenders, because health care facilities can get into trouble when it looks like you're singling someone out for harsher treatment," Sax says. "If you say sex offenders won't be admitted, then it should be all sex offenders and don't make individual exceptions. Or you can say you won't admit sex offenders who committed violent crimes, for instance. But whatever your policy is, it should be consistent."

The date of the conviction also is important, Sax says. If the person was convicted 20 years ago and there has been no evidence of criminal activity since then, it may be safe to assume the risk from that resident is lower than from a resident who was convicted a year ago.

"But at the same time, don't be lulled into thinking that older people won't commit these crimes," Sax says. "I'm dealing with two defendants now who are 78 and 80 years old."

Sources

For more information on sex offenders in health care facilities, contact:

• Robin Sax, JD, Deputy District Attorney, Los Angeles. E-mail: robin@robinsax.com.

• Helenemarie Blake, JD, Senior Partner, Fowler White Burnett, Miami. Telephone: (305) 789-9200. E-mail: hblake@fowler-white.com.

• Michael Fogel, PsyD, Department Chair, Forensic Psychology, The Chicago School of Professional Psychology. Telephone: (312) 410-8959. E-mail: mfogel@thechicagoschool.edu.