REGISTERED OFFENDERS IN HEALTH CARE FACILITIES

Transcription

1 REGISTERED OFFENDERS IN HEALTH CARE FACILITIES The 2005 Legislature enacted a number of provisions related to the admission of registered offenders to health care facilities. These provisions went into effect on August 1, 2005 and include: Self-disclosure by a registered offender at the time of admission to certain health care facilities Notification by law enforcement personnel to health care facilities that a registered offender is receiving services at the facility Notification to residents of certain health care facilities that a registered offender has been admitted The ability of nursing homes to discharge registered offenders who fail to selfdisclose Amendments to the Vulnerable Adult Abuse Reporting Act addressing steps to be taken to minimize risks to residents in the facility. The 2006 Legislature, at the urging of the provider organizations, then made some changes to Minnesota Statutes section , subdivision 4b which are effective July 1, Here are the changes: Self-disclosure by a registered offender to the health care facility must occur prior to admission, rather than at the time of admission Prior to admission, a registered offender must tell the correction agent, or the law enforcement authority with whom the offender is required to register, that inpatient admission will occur Law enforcement personnel who are aware that a registered offender is planning to be admitted, or has been admitted, to a health care facility must give the administrator a fact sheet containing specific information about the offender When a health care facility admits a registered offender whose fact sheet includes a risk level classification the facility must distribute the fact sheet to all facility residents. The 2009 Legislature amended Minnesota Statutes section , subdivision 4b to include in the definition of health care facility a facility registered by the commissioner of health as a housing with services establishment as defined in Minnesota Statutes section 144D.01. This section is effective August 1, and applies to predatory offenders who are required to register before, on, or after that date. Who Must Register? Under Minnesota Statutes section , subdivision 1b, any person charged with, petitioned for, or Court Martialed for a felony violation of, or attempt to violate, or aiding, abetting, or conspiring to commit, any of the following crimes and convicted of,

2 or adjudicated delinquent for that offense or for an offense arising out of the same set of circumstances is required to register: First Degree Murder , Clause 2 only Kidnapping Criminal Sexual Conduct in the First Degree Criminal Sexual Conduct in the Second Degree Criminal Sexual Conduct in the Third Degree Criminal Sexual Conduct in the Fourth Degree Criminal Sexual Conduct in the Fifth Degree , Subd. 3 only Criminal Sexual Predatory Conduct Indecent Exposure , Subd. 3 only False Imprisonment of a minor , Subd. 2 only Soliciting a minor to engage in prostitution or Soliciting a minor to engage in sexual conduct Using a minor in a sexual performance Possession of pornographic working involving a minor Sentenced as a Patterned Sex Offender Comparable violations of the Uniform Code of Military Justice Comparable Federal Offenses Comparable Offenses from other states Registered offenders from other states who enter Minnesota to work or attend school Committed as a person with sexual psychopathic personality and Sexually dangerous 253B.185 or similar law of another state Committed as Mentally Ill and Dangerous 253B.18 or similar law of another state Under Minnesota Statute section , anyone convicted of a crime against a person AND previously convicted of or adjudicated delinquent for an offense listed in section , but who was not required to register for the offense because the registration requirements of that section did not apply to them at that time the offense was committed or at the time the person was released from imprisonment, is required to register. Any person who was previously required to register in any state and who has completed the registration requirements of that state shall register again under section if the person commits a crime against the person. Crimes against a person include: Unlawful possession of a Firearm Murder in the First Degree Murder in the Second Degree Murder in the Third Degree Manslaughter in the First Degree Manslaughter in the Second Degree Assault in the First Degree Assault in the Second Degree Assault in the Third Degree Assault in the Fifth Degree , Subd. 2

3 Domestic Assault , Subd. 2 or 4 Criminal Abuse Aggravated Robbery , Subd. 1 Kidnapping False Imprisonment Criminal Sexual Conduct in the Fifth Degree , Subd. 2 Tampering With a Witness , Subd. 1 Burglary in the First Degree , Subd. 1 Indecent Exposure , Subd. 2 Crime Committed For Benefit of a Gang Felony Level Malicious Punishment of a Child Felony Level Harassment; Stalking Felony Level Unlawful possession of a pistol or semiautomatic military-style assault weapon Felony Level When and To Whom Must Registered Offenders Disclose Their Status? Under Minnesota Statutes section , subdivision 4b, persons required to register shall disclose, prior to admission, their status as a registered offender to the health care facility employee processing the admission. They must also disclose to the correction agent or the law enforcement authority with whom they are required to register that the inpatient admission will occur. Because the law requires admittance to the health care facility, it does not apply to outpatient clinics or emergency rooms in hospitals. A person who is required to register and who knowingly fails to self-disclose is guilty of a felony. Who Else Must Disclose the Status of Registered Offenders? Minnesota Statutes section , subdivision 4b(c) requires that a law enforcement authority or corrections agent who receives notice from a registered offender that the person is planning to be admitted and receive, or has been admitted and is receiving, health care at a health care facility shall notify the administrator of the facility and deliver a fact sheet. The fact sheet must contain the following information: The name and physical description of the offender The offender s conviction history, including the dates of conviction The risk level classification assigned to the offender under Minnesota Statutes section , if any The profile of likely victims

4 Which Facilities are Considered Health Care Facilities for Disclosure Purposes? Health care facilities include hospitals, nursing homes, boarding care homes, supervised living facilities, adult foster care homes, adult mental health and chemical dependency programs and residential facilities for persons with developmental disabilities. Beginning August 1,, registered housing with services establishments are included as health care facilities. Which Facilities are Not Considered Health Care Facilities for Disclosure Purposes? Housing with services (aka assisted living) establishments are not considered health care facilities until August 1,. Home care providers who are not registered HWS providers, are not covered by the law. Must a Health Care Facility Ask If a Person is a Registered Offender? There is no specific requirement in the law that a facility must ask a person applying for admission if he or she is a registered offender. There is also nothing in the law that prevents a facility from asking the question or requiring a specific affirmation that the individual is or is not a registered offender. Must Health Care Facilities Notify Other Residents That a Registered Offender Has Been Admitted? A health care facility that admits a registered offender whose fact sheet includes a risk level classification must distribute the fact sheet to all residents at the facility. However, if the facility determines that distribution to a resident is not appropriate given the resident s medical, emotional, or mental status, the facility shall distribute the fact sheet to the resident s next of kin or emergency contact. If the fact sheet does not include a risk level classification there is no duty to notify other residents of the admission. This notification requirement does not apply to hospitals. What is a Risk Level? Before a predatory offender is released from confinement, an end-of-confinement review committee assesses the risk presented by the offender and determines the risk level. Risk factors include, but are not limited to, the following: The seriousness of the offense should the offender reoffend (e.g., degree of likely force or harm, degree of likely physical contact, age of the victim)

5 The offender s prior offense history (e.g., relationship of prior victims to offender, number of prior offenses or victims, duration of the prior offense history, any prior history of other antisocial acts) The offender s characteristics (e.g., response to prior treatment efforts, any history of substance abuse) The availability of community supports to the offender (e.g., therapeutic treatment, a stable and supervised living environment, the level of support from familial and social relationships, any lack of education or employment stability) Whether any credible evidence indicates the offender will reoffend if released into the community Whether the offender demonstrates a physical condition that minimizes the risk of reoffense (e.g., advanced age, a debilitating illness or physical condition. Risk Level I is assigned to an offender who is determined to have a low risk of reoffending. Risk Level II is assigned to an offender with a moderate risk of reoffending. Risk Level III is assigned to an offender with a high risk of reoffending. The offender s correction agent can request a review of the risk level if circumstances change. An offender can request a reassessment after three years have elapsed since the initial assessment and may renew the request every two years following denials. Under What Circumstances Does a Nursing Home or Boarding Care Home Have a Right to Discharge a Registered Offender? Under Minnesota Statutes, section 144A.135(g), a person required to inform a health care facility of the person s status as a registered offender under section , subdivision 4b, who knowingly fails to do so is deemed to have endangered the safety of individuals in the facility under Code of Federal Regulations, chapter 42, section The facility must still give appropriate discharge notice and the reason for discharge must still be documented in the resident s record. If the discharge is for endangering the safety of individuals in the facility, the documentation can be by any physician. The facility must still discharge to a location that can meet the care needs of the resident and ensure a safe and orderly discharge. While 42 C.F.R allows for less than a 30 day notice prior to the discharge, Minnesota law requires that a resident be allowed to remain in the facility until resolution of any appeal. This is no longer true in the case of a resident who is discharged for failure to disclose his or her status as a registered offender. At an appeal hearing, it would seem that the only questions the Administrative Law Judge would need to address are whether the resident s record was documented appropriately by a physician and whether the resident knowingly failed to self-disclose his or her registered offender status prior to admission. If there was no physician documentation as required or it can be shown that the person did not knowingly fail to

6 disclose offender status prior to admission, the Administrative Law Judge should require the facility to readmit the person. The only residents who can be summarily discharged under the new law are those who were required to self-disclose their registered offender status prior to admission to the facility. If a nursing home or boarding care home finds out that one of their residents is a registered offender, but that person resided in the facility prior to August 1, 2005, the facility cannot use Minnesota Statutes, section 144A.135(g) as a basis for discharge. They may still try to discharge claiming the person endangers the safety of other individuals in the facility, however, they must give a 30 day notice and cannot discharge or transfer the person until resolution of any appeal. They must prove at the hearing that the person does indeed endanger the safety of other individuals. Vulnerable Adult Plan Amendments Minnesota Statutes, section , Subd. 14, subdivision (b) requires that facilities, including a home health care agency and personal care provider attendant services providers, develop an individual abuse prevention plan for each vulnerable adult residing in the facility or receiving services from them. These plans must contain an individualized assessment of The person s susceptibility to abuse by other individuals, including other vulnerable adults The person s risk of abusing other vulnerable adults and statements of the specific measures to be taken to minimize the risk of abuse to that person and other vulnerable adults (italics indicate 2005 additions to the subdivision). For the purpose of the subdivision, abuse includes self-abuse. The 2005 legislation also added a new subdivision (c) which provides that if the facility, except home health agencies and personal care attendant services providers, knows that the vulnerable adult has committed a violent crime or an act of physical aggression toward others, the individual abuse prevention plan must detail the measure to be taken to minimize the risk that the vulnerable adult might reasonably be expected to pose to visitors to the facility and persons outside the facility, if unsupervised. A facility knows of the vulnerable adult s history of criminal misconduct or physical aggression if it receives such information from a law enforcement authority or through a medical record prepared by another facility, another health care provider, or the facility s ongoing assessments of the vulnerable adult. How is MDH Monitoring Compliance with the New Laws? While Minnesota Statutes, section is within the jurisdiction of the Department of Corrections, MDH says it does have a responsibility for monitoring a health care facility s compliance with the provisions. However, some questions raised by providers are beyond the scope of MDH. For example, MDH will not advise providers as to

7 whether they are required to admit a registered offender. MDH also will not provide guidance as to whether a facility should add questions to its admission form related to a person s criminal history or require a specific affirmation regarding whether the individual is or is not a registered offender. From MDH s perspective, the primary obligation of a health care facility that admits a registered offender is the appropriate notification of other residents and the requirement to modify the individual abuse prevention plans. Since licensed health care facilities have an obligation to conform to state and local laws, failure to provide appropriate notification to other residents or to modify abuse prevention plans as provided by amendments to section subdivision 14 could subject the facility to the issuance of a correction order or a federal deficiency. MDH is developing guidance to surveyors on these issues.