Identifying and Managing Long-Term Care Residents With Criminal or Correctional Histories: Preliminary Analysis of One Facility’s Experience
Annals of Long-Term Care: Clinical Care and Aging. 2014;22(6):30-37.
Edgemoor Hospital DP/SNF, Santee, CA
Abstract: Increasingly, individuals with criminal or correctional histories are aging or becoming impaired, requiring long-term care (LTC) services. Little is known about the impact of these individuals on nursing facilities or strategies to minimize risk and comply with the F-Tag 224 requirements of identification, interventions, monitoring, and reassessment of residents who have the potential to abuse others. To address this paucity of information, the authors conducted a study that included a convenience sample of 46 individuals with disclosed criminal or correctional histories admitted to their facility between 2001 and 2013. They found that although a large proportion of those with known criminal histories can be safely placed in LTC settings with minimal disruption and risk, there are certain factors that increase the likelihood of problematic behaviors. This article outlines these factors and describes strategies for assessing risk, identifying and protecting potential victims, and preventing or managing problematic behaviors to decrease liability while balancing the rights of the criminal with those of residents, staff members, and the community at large.
Key words: Antisocial personality disorder, behavioral management, criminals, F-Tag 224, long-term care, sex offenders.
The combination of longer prison sentences and longer life expectancies results in a “graying” of the criminal justice population. Elderly individuals represent the fastest growing segment of federal and state prisons.1 In fact, the percentage of prisoners in federal and state prisons aged 55 years and older increased by approximately 50% from 2000 to 2005, according to US Department of Justice statistics,2,3 and this trend appears to be continuing.1 Aging inmates often have had hard lives, having faced issues such as poverty, trauma, homelessness, substance abuse, and/or mental illness. In addition, they often have sequelae from strokes, diabetes, tobacco use, substance abuse, heart disease, and cognitive decline, resulting in high medical costs that are covered by the correctional system rather than Medicaid or Medicare. When an inmate has a terminal illness, advanced dementia, or significant physical limitations, his or her sentence may be shortened due to sympathies of the public and because it is less costly to have these patients cared for outside of the prison system, which often prompts placement in long-term care (LTC) facilities.4 In addition, the National Correctional Industries Association advocates the systematic, supervised, early release of inmates aged 55 years and older who have served at least one-third of their sentences, have a history of only nonviolent offenses, and are deemed not to present significant risks to the community.4 Due to both costs and care needs, correctional systems are making concerted efforts to discharge these individuals to the community; however, the question is “Where in the community should they go?” Increasingly, the answer is becoming community nursing homes (NHs).
There is a dearth of research on the impact of those with criminal records in the NH environment. A 2011 national review of state policies noted that no research has been conducted on the dangerousness of those with a history of violent crime in LTC facilities or the best practices and policies for risk assessment and abuse prevention.5 A 2006 US Government Accountability Office (GAO) report on registered sex offenders and individuals on parole for nonsex offenses in LTC revealed that the mere presence of a history of a sex offense was not sufficient to predict future negative behavior within an NH.6 Nevertheless, high-profile stories of crimes committed in NHs spark community outrage against nursing facilities for failing to protect vulnerable elders from abuse. Likewise, at least one Centers for Medicare & Medicaid Services (CMS) ruling held a facility liable for the conduct of a resident outside of the LTC facility. In this case, which was against Emerald Park Health Care Center, CMS suggested that the facility should have conducted a background check and restricted residents from leaving the facility.7 While noting that “the regulations do not explicitly define a facility’s responsibility to its residents to include protecting third parties, such as community members…Any aggressive or harmful act perpetrated by a resident against the greater community ultimately would redound to that resident’s detriment,” (ie, the facility would have “allowed” the resident to be arrested, thus resulting in harm to that resident).7
While the public may be uncomfortable with the idea of criminals in this setting, NHs also may be seen as representing a controlled and supervised environment where it is assumed that medically impaired residents with criminal histories can be assessed, monitored, and controlled. The complexities of NH regulation, however, pose risks of being either too lenient or too discriminatory. If a resident is isolated due to criminal status or admissions of persons with criminal records are refused out of hand, for instance, violations of resident rights or discrimination may be alleged. At the same time, being seen as taking insufficient steps to protect other residents or even the community can result in adverse outcomes. F-Tag 224’s requirement for “the facility’s identification of residents whose personal histories render them at risk for abusing other residents, and development of intervention strategies to prevent occurrences, monitoring for changes that would trigger abusive behavior, and reassessment of the interventions on a regular basis”8 can be difficult even for forensic experts, much less NH staff.
The complexity of the issue of residents with criminal or correctional histories has been addressed by AMDA – The Society for Post-Acute and Long-Term Care Medicine (formerly the American Medical Directors Association) and is under consideration by the American Medical Association in a resolution titled “Addressing an Expected Increase in Long Term Care Continuum Residents with Criminal/Correctional Histories.”9 Elements of this resolution include the following recommendations for the study of safe management: balancing the rights of the post-prison residents with the rights and safety of other residents; identifying potential liabilities for LTC staff, including medical directors and attending physicians; and developing strategies to reach out to CMS, state agencies, and state correctional systems to facilitate transfer of medical information, provide safe and effective management of post-prison residents in the LTC setting, and ensure the appropriate discharge/release assessment and planning.
Our 192-bed, predominately Medicaid facility cares for a younger (average age, approximately 55 years) and more male (approximately 60%) population, and has some experience with residents who have criminal backgrounds. We identified a sample of those with criminal or correctional histories and report on factors we identified that might predict difficulties in caring for these individuals in the LTC setting.
A convenience sample of individuals with criminal or correctional histories who were admitted to our facility between 2001 and 2013 were identified via LTC staff recollection and a review of medical records. A clinical psychologist with forensic experience then reviewed this sample to further verify history and to classify criminal activities. Inclusion criteria included either self-reported or ancillary information that indicated a criminal record or warrant in the felony category or a history of incarceration. Information may have been obtained prior to, during, or after admission. Crimes ranged from “minor,” mostly related to homelessness (eg, disorderly conduct, public intoxication, exhibitionism, resisting arrest, theft), to more severe (eg, drug-related felonies, sex offenses, embezzlement, fraud, arson, battery, assault with a deadly weapon, rape, murder).
Clinicians, including nurses, social workers, clinical psychologists, and physicians, collaborated to classify the residents into “minimal,” “moderate,” or “severe” categories based on the negative behaviors these residents exhibited in the NH. There was no disagreement about categorization. Residents who displayed “minimal” negative behaviors, such as occasional verbal outbursts or one minor rule violation, smoothly transitioned to life in the NH with few difficulties. Residents with “moderate” negative behaviors had a high incidence of rule violations, excessive complaints, or demanding behaviors, making care more difficult, but not to the point that outside intervention was needed. Residents with “severe” negative behaviors engaged in acts that required law enforcement intervention, such as the abuse of disabled peers, substance abuse in the facility, and severe aggression (Table 1).
In an effort to identify particular traits associated with a heightened risk of problematic behavior, the team identified 11 potential predictors based on clinical experience and the availability of data in the resident’s records. Fisher’s exact test was used, merging the categories of “moderate” and “severe” into “problematic behavior” to facilitate statistical analysis.10
In total, 46 residents met the inclusion criteria (38 [83%] men, 8 [17%] women), with age on admission ranging from 29 to 81 years. In this sample, 15 individuals (33%) committed violent offenses, 21 (46%) committed nonviolent offenses, and 10 (22%) committed offenses with severities that could not be identified per their history. Eight residents (17%) committed sex offenses, all of whom were registered on state and national registries; 16 (35%) had been in prison; 21 (46%) spent time in jail; and nine (19.5%) fit into other categories (eg, convicted but not sentenced due to the severity of a medical condition, lack of recall, or lack of willingness to self-report incarceration, felony warrants, or forensic state hospital placement). A total of six individuals (13%) were on parole, five (11%) were on probation during at least some portion of their stay in the NH, and one (2%) was in active jail custody during his or her rehabilitation stay with deputies present at all times.
In the sample, 19 residents (41%) were ambulatory, 21 (46%) used wheelchairs, and six (13%) were immobile at the time of admission. Twenty-one individuals (46%) had a diagnosis of dementia, often due to substance abuse, mental illness, trauma, or multiple etiologies; 23 (50%) had substance-related diagnoses; 18 (39%) had drug-related charges; and 25 (54%) had a serious mental illness other than dementia (primarily schizophrenia with fewer bipolar and mood disorders). Four residents (9%) had previously received a diagnosis of antisocial personality disorder (ASPD). Per clinical review, at least six more residents would likely have met the criteria for an ASPD diagnosis, but they either did not have a formal diagnosis or there was insufficient evidence of conduct disorder with onset before age 15 (evidence of conduct disorder prior to age 15 is a diagnostic criteria for ASPD in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision).11
Prior to NH admission, 35 individuals (76%) were in hospital settings, seven (15%) were incarcerated, and four (9%) were in other settings, including the home. In reviewing the admissions of persons with known criminal histories, the greatest number, 13 (28%), were admitted in 2012 as realignment was being fully implemented in California (prior years ranged from 0%-11%). (Realignment in California shifts the responsibility from the state itself to individual counties for the custody, treatment, and supervision of individuals convicted of specified nonviolent, nonserious, nonsex crimes.) This may be related to increased awareness on the part of our facility to seek out criminal histories or to more referrals as offenders were shifted to the custody of counties. Facility staff knew about residents’ criminal activities prior to their admission in 28 cases (61%), and staff discovered residents’ criminal status postadmission in 18 cases (39%). During the study period, no admissions were due to medical parole (the California SB 1399 medical parole law did not take effect until January 1, 2011) or compassionate release programs (when inmates who are dying or facing other extraordinary circumstances are released from prison early).
Of the 46 residents with criminal histories, 25 (54%) smoothly transitioned to life in the NH with minimal difficulties (“minimal” category), 11 (24%) had some difficulties that were managed readily using the standard resources of the NH (“moderate” category), and 10 (22%) were uniquely challenging and strained the capacity of staff to provide care, posing risks to the safety of staff and others (“severe” category). Nearly half (48%) of the individuals in the problematic behavior category (n=21) committed intentional aggressive acts against others in a care setting either prior to or during their admission. As previously mentioned, the “moderate” and “severe” groups were combined into a “problematic behavior” category to address our small sample size, and the Fisher’s exact test was employed.10
Of 11 potential predictors of problematic behavior, three were found to be significant: (1) a formal ASPD diagnosis in the admission records (P=.037); (2) antisocial personality traits absent of a formal diagnosis (P=.005); and (3) being ambulatory (P=.043). None of the residents with the most severe behavior problems entered directly from the correctional system (9 of 10 came from a hospital, one came from a home). Table 2 categorizes the individuals and describes characteristics observed in each subset.
The majority of residents admitted to our facility with criminal records and sex offender registrations did not harm others and were able to integrate with the milieu, consistent with the aforementioned findings of the GAO report. A small subset, however, was extremely disruptive and posed a danger to the facility, the residents, and the community. Although the residents’ criminal histories were known on admission in 61% of cases, this still leaves nearly 40% of cases in which this information was obtained after admission. One goal for LTC facilities is to identify factors that are associated with dangerousness and risk to better inform admissions decisions. Although admission criteria might have been primarily focused on medical needs and acuity in the past, the CMS decision in the case of Emerald Park Health Care7 and F-Tag 224 requirements currently place a significant demand on facilities to identify “residents whose personal histories render them at risk for abusing other residents, and development of intervention strategies to prevent occurrences,”8 and even to protect the community.
The identification of residents who potentially pose significant risk may result in more selective admissions or better planning to ensure that adequate resources are available to safely manage the individual before a problem arises; however, there is no consistent mechanism to obtain information about a resident’s criminal history prior to his or her admission. At a minimum, searching free, easily accessible, public online sex offender registries is prudent prior to admission (eg, www.nsopw.gov/Core/Portal.aspx). While not found in our sample to be a significant predictor of subsequent problematic behavior, the high availability and ease of obtaining these sex offender data and the mandate to identify high-risk residents would make not doing so hard to justify in the event of an incident. Formal background checks are another option, but these can be problematic considering the rapid time frames from referral to admission, high cost, privacy concerns, and a lack of standardization.
In our analysis, all individuals admitted during the past 13 years who exhibited ASPD symptoms were extremely challenging. Our experience is that the diagnosis of ASPD, or behavior strongly supportive of an undiagnosed ASPD, is the best single predictor of later serious behavioral difficulties in LTC, especially if the individual retains significant physical capabilities. The diagnosis or suggestion of ASPD and a history of aggression in a previous care setting should prompt further review prior to a resident’s admission. Characteristics of ASPD that are particularly difficult to manage in the LTC setting include aggression; exploiting, manipulating, and/or blaming others; using formal complaint mechanisms as a means of intimidation; and making direct threats. These individuals also exhibit a lack of remorse, an inability to form caring relationships, or a lack of concern for others that might be a basis for motivation to make efforts to positively adapt to their LTC community.
In the legal system, the ability to formulate criminal intent (often referred to by attorneys as mens rea) and the ability to physically act (also called actus reus) are generally prerequisites to defining a behavior as a crime. This same combination appeared relevant in our observations of increasingly harmful behavior among LTC residents with both ASPD and the ability to ambulate, as these persons had the ability to formulate criminal intent and to physically act on their intent. As shown in the Figure, dangerousness is related to multiple factors, including the desire to engage in harmful behaviors, the capacity to form intent, and the ability to enact a plan.
Identification of High-Risk Residents
Our admission screening process focuses on the identification of antisocial traits and physical abilities through the use of a skilled reviewer. Preadmission questions, based on one clinician’s forensic and LTC experience, are outlined in Table 3. Since the addition of a more detailed focus on criminality to our preadmission screening, our facility has avoided the admission of residents fitting the classification of “problematic behavior.”
While the identification of high-risk residents prior to admission is optimal, how do we identify them if they are already in our midst? Initial and periodic assessments of potential or past criminal behavior may be added to the comprehensive assessment on admission and periodically throughout the resident’s stay at the facility. This assessment might evaluate for history of aggression or abuse or current physical and cognitive status and prognosis (eg, Will the individual strengthen and rehabilitate, decline and disinhibit, or decline and be less likely to engage in behaviors?). Information can be obtained from the resident’s records, but often an interview with his or her family or contact with parole or probation officers is necessary to obtain sufficient information. It is also important to realize that all methods of learning about criminal history will miss a significant number of relevant cases. One study noted that the serious criminal history of a resident (ie, violence, sex offender status) was reported only approximately 50% or less of the time.12
Ultimately, even with reasonable efforts, we could not have known how many residents had a history of criminal acts or incarceration that was not identified. Even if we had access to law enforcement databases or other background checks, this would not capture those individuals with a history of criminal acts who did not come into contact with the justice system. This provides further argument for focusing on behaviors and abilities, rather than on histories and labels.
Ongoing assessment of risk should solicit staff observations. Staff should be educated about and encouraged to look for signs of potentially antisocial behavior. These may include residents who fail to form any positive relationships with staff, family, or peers. Those with a sense of entitlement, frequent complaints, and history of manipulating staff should be evaluated further for dangerousness. Residents who befriend individuals with a lower cognitive status may be guilty of exploitation. If a resident’s reaction to a situation demonstrates a lack of remorse, lying, manipulation, or externalizing blame (ie, always the fault of others and “I am the victim”), this can indicate a problem. Finally, display of certain tattoos or other prison or gang insignia may suggest criminal affiliations. In addition to these residents potentially posing a risk, they may receive problematic visitors, which could further increase the risk to the LTC community.
Identification and Protection of Potential Victims
Managing risk includes identifying potential victims. LTC caregivers are responsible for protecting residents who are unable to protect themselves from fiscal, financial, physical, or sexual abuse. In an effort to identify particularly vulnerable persons, examining traits that decrease the ability of the resident to self-protect and increase his or her attractiveness to potential abuse may be helpful. For example, greater cognitive and physical impairment may increase vulnerability, and possession of items of value or being sexually appealing to a potential abuser may increase attractiveness. Pedophiles may go after children, visitors, or older adults who may appear childlike due to cognitive impairment or their physical traits. Depending on sexual orientation, perpetrators may be more likely to offend against a particular sex. A cognitively impaired resident with money or valuable items may be observed making “gifts” to a higher-functioning resident, although this actually reflects exploitation. Offenders may be disinhibited, opportunistic, or may lie in wait, which may affect the protective measures that are necessary with a given potential victim. Finally, offenders without access to their preferred victim type may “improvise” and target anyone who is available; therefore, general safety practices should be heightened if risk factors are present.
Care planning strategies to minimize contact with potential victims include housing those with mobility and higher cognitive abilities separately from their most vulnerable peers (those who lack the mobility, verbal abilities, or cognitive abilities to obtain help if attacked). This can also provide watchful eyes of both staff and peers. Rooms for both potential offenders and victims may be assigned to be near points of supervision and activity (eg, nursing stations). Restricting a possible offender’s participation in activities where children are present, assuring that all children are supervised in the facility, heightened nursing observation, and more frequent checks can also be implemented. Limiting the mobility of patients with criminal histories can be accomplished through the use of manual rather than power wheelchairs within the building or restricting access to certain areas of the facility (eg, areas where the more vulnerable residents are housed) without supervision. Table 4 provides suggestions for interventions to promote safety in an LTC facility.
When a risk of sexual or other criminal offending is identified, the notification of relevant parties may be considered as a safety measure. While often public record, “disclosure” of this information can be challenging, as a resident’s right to privacy is reiterated in LTC regulations. At the same time, a facility has a duty to protect vulnerable residents, and notification may be necessary to accomplish this by providing a warning to staff or other relevant parties and for care planning. If notification is considered, it is important to limit notification to those with a “need to know,” and to be prepared to justify any disclosure based on resident safety.
Care planning involves sensitivity to the balance between rights and safety captured in facility documentation. LTC providers should document any identified risks and their rationale for any interventions put in place to protect others that may possibly violate rights of autonomy or privacy. Documentation should not be punitive, but rather take a patient-centered approach that looks not only at the label of “criminal” or “sex offender,” but also at the risks posed by the resident’s actual behavior, as informed by history. It should also consider the rights of the other residents to live free of the threat of exploitation and violence. The challenge here is balancing the assumption that an individual is “innocent until proven guilty” and has the right to due process with the requirements of F-Tag 224 and the ruling on the Emerald Park case, both of which require facilities to identify risk and intervene accordingly.
Although California is a rights-based state, our facility successfully limited the rights of one individual using good documentation of the risks this person imposes and the possible impact they have on the rights of others. At the same time, if actions that may limit a resident’s rights are contemplated, consultation with legal counsel, the ombudsman, or your state’s Department of Public Health should be initiated to ensure appropriate balancing of rights and risks and documentation. If early morning routines leave common areas largely unsupervised, for example, a behavioral plan may include instructions for a potentially dangerous resident to be the “last one” to get up in the morning to limit unsupervised contact with others. In addition, as previously mentioned, a resident who poses a risk to others can be restricted in his or her use of a power wheelchair within the facility to certain times or areas. Alternatively, he or she can simply be prohibited from using a power wheelchair altogether within the facility, with staff only assisting in mechanical transfers into such a chair if the individual is planning to leave the building.
Managing Problematic Behavior in NHs
When a resident is under parole and probation supervision, collaborating with these agencies may be helpful when dealing with behavioral problems in LTC. Knowledge of parole or probation conditions and the presence of a probation or parole officer/agent can also be useful. For example, if the resident is under the influence of illegal drugs or alcohol, this may violate conditions of his or her probation or parole, and the officer/agent may be in a position to intervene. Also, sometimes the consequence of calling a supervising officer may serve to suppress negative behaviors. It is important to know that parole or probation may be ended early when a resident is in the supervised environment of an LTC facility and that, in most cases, parole or probation will end when the individual has completed his or her sentence.
In meeting the needs of facilities to manage criminal behavior, the Elder Justice Act mandates that crimes committed in NHs are reported to state regulators, the ombudsman, and law enforcement.13 While the goal is to prevent crimes rather than react to them, if incidents do occur, the Elder Justice Act provides a vehicle to engage law enforcement, which may serve to prevent further difficulties. Not all people, however, are arrested or go to jail for long, and when they are released, even while awaiting trial, they will need to be placed somewhere—many times moving from custody into another unsuspecting NH.
To manage individuals with criminal or correctional histories effectively in LTC, facilities must identify persons who may pose significant risk—ideally prior to admission—to reduce the risk to other residents, the facility, and the community. Preadmission screening may prevent the entrance of those who might be at the highest risk of causing problematic behavior, or at least allow for concerns to be anticipated and planned for. At a minimum, sex offender registry checks should be performed; however, our study results suggest that simply identifying a resident as a “criminal” through history or sex offender or other registries is of little benefit. We found antisocial behavior to be the most meaningful predictor of abusive behavior in LTC settings and the best basis for care planning. Therefore, tailoring preadmission and subsequent screenings to identify signs of antisocial traits or an ASPD diagnosis, inquiring about harmful behaviors and criminal history, and assessing the resident’s physical and mental capabilities may help develop a clearer picture of the risks posed and provide a more sound method justifying interventions.
Risk management balances the rights of the individual (privacy, quality of life) and the duty of the facility—tilting too much either way can result in liability and bad outcomes. Care planning involves the consideration of notification (of staff and of other residents as needed) of a resident’s offender status, protection of potential victims, and careful documentation of justification for violation of rights. By focusing on actual behavior and associated risks, we may find greater justification and support for interventions versus attempting to care plan based on the label “criminal.” Facilities need to develop policies and procedures to appropriately manage the risk of sex offenders and other criminals in LTC environments. The focus should be on reasonable efforts, in light of both the noted mandates (F-Tags) and our duty to protect our residents, staff, and—perhaps to a greater degree than we might expect—the community at large.
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2. Beck Allen J, Harrison Paige M. Prisoners in 2005. Bureau of Justice Statistics website. http://bjs.ojp.usdoj.gov/content/pub/pdf/p05.pdf. Published November 2006. Accessed January 17, 2014.
3. Beck Allen J, Harrison Paige M. Prisoners in 2000. http://bjs.ojp.usdoj.gov/content/pub/pdf/p00.pdf. Published August 2001. Accessed January 17, 2014.
4. Kaldy J. Older inmates challenge prisons and LTC facilities. Caring for the Ages. www.caringfortheages.com. Published August 9, 2011. Accessed January 17, 2014.
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7. US Department of Health and Human Services (HHS) Departmental Appeals Board, Civil Remedies Division. Emerald Park Health Care Center, Petitioner, v. Centers for Medicare & Medicaid Services. HHS website. www.hhs.gov/dab/decisions/CR1462.htm. Published June 20, 2006. Accessed January 17, 2014.
8. NC Department of Health and Human Services. Self survey module 483.13 (c) staff treatment of residents: Tag F224. www.ncdhhs.gov/dhsr/nhlcs/pdf/tag_224.pdf. Accessed April 17, 2014.
9. American Medical Directors Association (AMDA). Addressing an expected increase in long term care continuum residents with criminal/correctional histories: policy E11. www.amda.com. Updated March 2011. Accessed January 18, 2014.
10. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Arlington, VA: American Psychiatric Association; 2000.
11. Preacher KJ, Briggs NE. Calculation for Fisher’s exact test: an interactive calculation tool for Fisher’s exact probability test for 2 x 2 tables [computer program]. Published May 2001. http://quantpsy.org. Accessed April 22, 2014.
12. Brown P, Straker JK. Criminal offenders in Ohio nursing homes: facility practices, prevalence and problems. www.scripps.muohio.edu/sites/scripps.muohio.edu/files/Criminal%20Offende.... Published January 2012. Accessed January 19, 2014.
13. Elder Justice Act (EJA). Section 1150B, Social Security Act 42 CFR 483.13(c). March 23, 2010.
Disclosures: The authors report no relevant financial relationships.
Address correspondence to: Robert M. Gibson, PhD, JD, Edgemoor Hospital DP/SNF, 655 Park Center Drive, Santee, CA 92071; email@example.com