Long-Term Care Facilities
Information on Residents Who Are Registered Sex Offenders or Are Paroled for Other Crimes Gao ID: GAO-06-326 March 31, 2006Approximately 23,000 nursing homes and intermediate care facilities for people with mental retardation (ICF-MR) receive federal Medicare and Medicaid funding. Media reports have cited examples of convicted sex offenders residing in long-term care facilities and, in some cases, allegedly abusing other residents. Given concerns about resident safety, GAO was asked to assess (1) the prevalence of sex offenders and others on parole for non-sex offenses living in long-term care facilities and the extent of any abuse they may have caused, (2) the legal requirements for notifying facilities and others when offenders are residents, and (3) the extent to which facilities have different supervision and separation requirements for offenders. GAO analyzed a national database for sex offenders and analyzed state databases in a sample of eight states for sex offenders and parolees.
By analyzing the FBI's National Sex Offender Registry (NSOR), which is a compilation of sex offender registries submitted by all states, GAO identified about 700 registered sex offenders living in nursing homes or ICFs-MR during 2005. Most identified sex offenders were male, under age 65, and living in nursing homes, and represented 0.05 percent of the 1.5 million residents of nursing homes and ICFs-MR. About 3 percent of nursing homes and 0.7 percent of ICFs-MR housed at least 1 identified sex offender during 2005. However, these estimates are understated due to data limitations. For example, because of a lack of resources or an inability to comply with certain FBI reporting requirements, states have had varying degrees of difficulty submitting their full state registries to the NSOR. While the FBI does not track NSOR submission rates, GAO compared sex offender registry data from seven of the eight states reviewed to NSOR data and found that the NSOR data included about 57 percent of sex offenders registered in these states, with submission rates ranging from 1 percent to 83 percent. Because a national data source on parolees that included address information was not available, GAO also obtained parolee databases from the eight reviewed states and identified 204 offenders on parole for non-sex offenses living in long-term care facilities. GAO could not determine the overall risk that registered sex offenders and parolees pose to other residents in long-term care facilities because offender status is not tracked with abuse reporting. Facility administrators expressed greater concern over the risk posed by cognitively impaired or mentally ill residents. Federal law requires state law enforcement agencies to release relevant information about registered sex offenders when necessary to protect the public, but GAO did not identify a similar federal law for the parolee population. States have broad discretion in how to implement the requirement for registered sex offender notification. Therefore, the extent to which states' community notification laws apply to all registered sex offenders or explicitly include long-term care facilities varies. For example, four of the eight states GAO reviewed--California, Illinois, Minnesota, and Oklahoma--had laws that specified long-term care facilities as entities to be notified for at least some registered sex offenders who entered them. However, some facility administrators GAO contacted were uncertain as to whether they could share information with staff and others about residents who were known offenders in light of the Privacy Rule issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Long-term care facilities GAO contacted do not routinely impose different supervision or separation requirements on residents who are offenders based solely on their prior convictions. Instead, these facilities base such decisions on the demonstrated behaviors of residents. Even if long-term care facilities wanted to impose different supervision and separation requirements on offenders, their ability to do so is limited because they are not always aware of residents' prior convictions.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-06-326, Long-Term Care Facilities: Information on Residents Who Are Registered Sex Offenders or Are Paroled for Other Crimes
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United States Government Accountability Office:
GAO:
Report to Congressional Requesters:
March 2006:
Long-Term Care Facilities:
Information on Residents Who Are Registered Sex Offenders or Are
Paroled for Other Crimes:
GAO-06-326:
GAO Highlights:
Highlights of GAO-06-326, a report to congressional requesters.
Why GAO Did This Study:
Approximately 23,000 nursing homes and intermediate care facilities for
people with mental retardation (ICF-MR) receive federal Medicare and
Medicaid funding. Media reports have cited examples of convicted sex
offenders residing in long-term care facilities and, in some cases,
allegedly abusing other residents. Given concerns about resident
safety, GAO was asked to assess (1) the prevalence of sex offenders and
others on parole for non-sex offenses living in long-term care
facilities and the extent of any abuse they may have caused,
(2) the legal requirements for notifying facilities and others when
offenders are residents, and (3) the extent to which facilities have
different supervision and separation requirements for offenders. GAO
analyzed a national database for sex offenders and analyzed state
databases in a sample of eight states for sex offenders and parolees.
What GAO Found:
By analyzing the FBI‘s NSOR, which is a compilation of sex offender
registries submitted by all states, GAO identified about 700 registered
sex offenders living in nursing homes or ICFs-MR during 2005. Most
identified sex offenders were male, under age 65, and living in nursing
homes, and represented 0.05 percent of the 1.5 million residents of
nursing homes and ICFs-MR. About 3 percent of nursing homes and 0.7
percent of ICFs-MR housed at least 1 identified sex offender during
2005. However, these estimates are understated due to data limitations.
For example, because of a lack of resources or an inability to comply
with certain FBI reporting requirements, states have had varying
degrees of difficulty submitting their full state registries to the
NSOR. While the FBI does not track NSOR submission rates, GAO compared
sex offender registry data from seven of the eight states reviewed to
NSOR data and found that the NSOR data included about 57 percent of sex
offenders registered in these states, with submission rates ranging
from 1 percent to 83 percent. Because a national data source on
parolees that included address information was not available, GAO also
obtained parolee databases from the eight reviewed states and
identified 204 offenders on parole for non-sex offenses living in long-
term care facilities. GAO could not determine the overall risk that
registered sex offenders and parolees pose to other residents in long-
term care facilities because offender status is not tracked with abuse
reporting. Facility administrators expressed greater concern over the
risk posed by cognitively impaired or mentally ill residents.
Federal law requires state law enforcement agencies to release relevant
information about registered sex offenders when necessary to protect
the public, but GAO did not identify a similar federal law for the
parolee population. States have broad discretion in how to implement
the requirement for registered sex offender notification. Therefore,
the extent to which states‘ community notification laws apply to all
registered sex offenders or explicitly include long-term care
facilities varies. For example, four of the eight states GAO
reviewed”California, Illinois, Minnesota, and Oklahoma”had laws that
specified long-term care facilities as entities to be notified for at
least some registered sex offenders who entered them. However, some
facility administrators GAO contacted were uncertain as to whether they
could share information with staff and others about residents who were
known offenders in light of the Privacy Rule issued under the Health
Insurance Portability and Accountability Act of 1996 (HIPAA).
Long-term care facilities GAO contacted do not routinely impose
different supervision or separation requirements on residents who are
offenders based solely on their prior convictions. Instead, these
facilities base such decisions on the demonstrated behaviors of
residents. Even if long-term care facilities wanted to impose different
supervision and separation requirements on offenders, their ability to
do so is limited because they are not always aware of residents‘ prior
convictions.
What GAO Recommends:
GAO recommends that the Federal Bureau of Investigation (FBI) assess
the completeness of the National Sex Offender Registry (NSOR),
including state submission rates, and evaluate options to increase its
comprehensiveness. The Department of Justice (DOJ) commented that
these recommendations are unnecessary because of efforts already in
place. GAO recognizes these efforts but maintains that the
recommendations remain valid.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-326].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Kathryn G. Allen at (202)
512-7118 or allenk@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Identification of Offenders Living in Long-Term Care Facilities and
Assessment of the Risk They Pose Limited by Data Shortcomings:
States Required to Notify Community about Registered Sex Offenders, but
Extent of Notification Varies:
Supervision and Separation of Long-Term Care Facility Residents Largely
Based on Behavior, Not Prior Convictions:
Conclusions:
Recommendations for Executive Action:
Agency and State Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Registered Sex Offenders Living in Nursing Homes and ICFs-
MR:
Appendix III: Comments from the Department of Justice:
Appendix IV: Comments from the Department of Health and Human Services:
Appendix V: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Estimated Submission Rates to NSOR, by States Reviewed, 2005:
Table 2: Parolees Identified as Living in Long-term Care Facilities in
States Reviewed, 2005:
Table 3: Validity of Offender Address Data by Data Source:
Table 4: Registered Sex Offenders Identified as Living in Nursing Homes
and ICFs-MR, by State, 2005:
Abbreviations:
CMS: Centers for Medicare & Medicaid Services:
FBI: Federal Bureau of Investigation:
HHS: Department of Health and Human Services:
HHS-OCR Department of Health and Human Services Office for Civil
Rights:
HIPAA: Health Insurance Portability and Accountability Act of 1996:
ICF- MR: intermediate care facility for people with mental retardation:
NNHS: National Nursing Homes Survey:
NORS: National Ombudsman Reporting System:
NSOR: National Sex Offender Registry:
OSCAR: Online Survey, Certification and Reporting system:
United States Government Accountability Office:
Washington, DC 20548:
March 31, 2006:
The Honorable Charles E. Grassley:
Chairman:
Committee on Finance:
United States Senate:
The Honorable Henry A. Waxman:
Ranking Minority Member:
Committee on Government Reform:
House of Representatives:
The Honorable Betty McCollum:
House of Representatives:
Approximately 16,000 nursing homes and 6,600 intermediate care
facilities for people with mental retardation (ICF-MR) participate in
Medicare, Medicaid, or both, and receive federal funding to care for
their residents. Federal Medicare and Medicaid funds accounted for a
significant portion of total funding to these nursing homes and ICFs-
MR--approximately $43 billion of a total of over $110 billion in 2003,
with about $37 billion spent in nursing homes and $6 billion in ICFs-
MR.[Footnote 1] Because of the large amount of federal funding these
long-term care facilities receive, there is a strong interest in
ensuring the safety and well-being of their vulnerable residents.
Concerns about the quality of care provided to residents of long-term
care facilities are long-standing. Since 1998, a number of
congressional hearings have focused on ensuring the quality of care and
protecting the safety and rights of nursing home residents. Recently,
news outlets and others have reported accounts of convicted sex
offenders residing in nursing homes and, in some cases, allegedly
abusing other residents. Often, nursing home staff and residents'
families were not informed when convicted sex offenders were residents.
The admission to long-term care facilities of individuals on parole for
non-sex offenses[Footnote 2] raises similar concerns about the
potential for abuse. Because of your concerns about resident safety, we
are providing information on (1) the prevalence of offenders living in
nursing homes and ICFs-MR and the extent of abuse caused by such
offenders in these long-term care facilities; (2) whether federal and
state laws provide for notification of staff, residents' families, and
residents when such offenders live in these long-term care facilities;
and (3) the extent to which these offenders are subject to supervision
or separation requirements that differ from those for other residents.
To determine the prevalence of registered sex offenders residing in
these long-term care facilities nationwide, we obtained the Federal
Bureau of Investigation's (FBI) National Sex Offender Registry (NSOR),
a national database utilized by law enforcement that compiles
information about registered sex offenders submitted by all 50 states
and the District of Columbia, as of January 3, 2005. We used the NSOR
to identify the home addresses of registered sex offenders and matched
them with the addresses of nursing homes and ICFs-MR included in the
Centers for Medicare & Medicaid Services' (CMS) Online Survey,
Certification and Reporting system (OSCAR) database, which compiles the
results of state nursing home surveys. To assess the completeness of
the NSOR data, we requested complete sex offender registries from eight
states--California, Florida, Illinois, Minnesota, Ohio, Oklahoma, New
Jersey, and Utah--which we selected on the basis of a number of
criteria, including variation in geographic location and in the number
of registered sex offenders identified as living in these states' long-
term care facilities based on our preliminary analyses. Seven of the
eight states provided their sex offender registries, and we compared
the total number of sex offenders on each of the state registries with
the total number for each state identified through the NSOR.[Footnote
3] In the course of comparing the results of the NSOR and state sex
offender registries analyses, we became aware that the NSOR did not
include the full sex offender registries of these states. Since no
national database exists for parolees that includes address
information, we also obtained parolee databases from each of these
eight states. We matched parolee addresses with addresses for nursing
homes and ICFs-MR from OSCAR for the eight states; however, because of
the limited number of states reviewed, we could not generalize these
results as representative of all states. We obtained state registries
and parolee databases from January through September 2005.
To gather information about the administration and content of state sex
offender registries, including their submission of records to the NSOR,
we interviewed state registry administrators from all eight states and
submitted a questionnaire via e-mail to all other states, receiving
responses from an additional 20 states. To assess the reliability of
FBI and state data, we discussed data quality control procedures,
reviewed relevant documentation with officials, and conducted
electronic data testing. We determined that while the NSOR does not
include all registered or convicted sex offenders, its records are
regularly audited and are sufficiently reliable for the purposes of
this report. The lack of comprehensiveness of the data was evaluated
and taken into account in our discussion of the results. We determined
that the OSCAR database and state parolee databases were sufficiently
reliable for our purposes.
To obtain information about resident abuse perpetrated by sex offenders
and parolees residing in long-term care facilities, we reviewed
existing research and GAO reports and interviewed officials of industry
associations and long-term care ombudsmen. Within the eight states we
reviewed, we also interviewed state officials responsible for nursing
home and ICF-MR licensing, as well as administrators at 29 of 32
judgmentally selected long-term care facilities---4 from each state. We
also relied on these interviews, interviews with federal officials, and
a review of federal and state laws to determine whether federal and
state laws provide for notification of facility staff, residents, and
residents' families when offenders live in these long-term care
facilities and the extent to which offenders are supervised and
separated from other residents. In the eight states we reviewed, we
also examined states' public sex offender Web site registries to
determine what information on registered sex offenders is available to
the public. We conducted our work from September 2004 through February
2006 in accordance with generally accepted government auditing
standards. (For additional information on our scope and methodology,
see app. I.)
Results in Brief:
Using the FBI's NSOR, we identified about 700 registered sex offenders
living in long-term care facilities during 2005, representing 0.05
percent of the 1.5 million residents of these facilities. About 3
percent of nursing homes and 0.7 percent of ICFs-MR housed a registered
sex offender during 2005. Almost 90 percent of registered sex offenders
we identified lived in nursing homes and were considerably younger than
the general nursing home population, with 57 percent under age 65
compared to about 10 percent of all nursing home residents. However,
our count is understated because of limitations in data availability.
For example, while the NSOR is a national database that compiles
information about registered sex offenders submitted by all 50 states
and the District of Columbia, it does not include convicted sex
offenders who are not on state registries, including those who were
convicted or released from prison before registration requirements went
into effect and those who are required by law to register but do not
comply. While noncompliance is difficult to track, four of the eight
states we reviewed estimated noncompliance rates that ranged from 4.5
percent to 25 percent of all sex offenders required to register. In
addition, because of a lack of resources or an inability to comply with
certain FBI reporting requirements, states have had varying degrees of
difficulty submitting their full state registries to the NSOR. While
the FBI does not track NSOR submission rates, our analyses of the
registries obtained from seven of the eight states we reviewed
indicated NSOR submission rates averaging about 57 percent, ranging
from 1 percent to 83 percent, while the 20 other states that responded
to our e-mail questionnaire reported NSOR submission rates ranging from
46 percent to 100 percent. Because there is no national data source on
parolees that includes address information, we obtained parolee
databases from all eight states we reviewed and identified 204
offenders on parole for non-sex offenses living in long-term care
facilities. We could not estimate the overall risk these registered sex
offenders and parolees pose to other residents in long-term care
facilities because data are not available in the reviewed states on
abuse perpetrated specifically by residents who have prior convictions.
Facility administrators we interviewed more frequently expressed
concern over the potential for abuse by residents with cognitive
impairments or mental illness than those with prior convictions.
Federal law requires state law enforcement agencies to release relevant
information about registered sex offenders when necessary to protect
the public, but we did not identify a similar federal law for the
parolee population. States have broad discretion on how to implement
this requirement for registered sex offenders and often do so through a
process known as community notification. Consequently, the extent to
which states' community notification laws apply to all registered sex
offenders or explicitly include long-term care facilities varies, and
this variation was evident in the eight states we reviewed. For
example, while two states we reviewed apply uniform community
notification requirements to all registered sex offenders, the six
remaining states vary these notification requirements depending on the
crime committed by the registered sex offender or risk to re-offend.
Similarly, only half of the states we reviewed specify that long-term
care facilities be notified when at least some registered sex offenders
are residents. Long-term care facilities in the remaining four states,
or in states where community notification of these facilities is not
required for all registered sex offenders, may not be aware of
residents who are offenders or must rely on other methods, such as
publicly available state Web site registries, to identify such
individuals. While we identified no federal law that requires community
notification for parolees when they enter long-term care facilities,
three of the eight states we reviewed require community notification
for all or a subset of parolees. When long-term care facility residents
are known offenders, opinions differ among state and long-term care
officials we interviewed as to whether sharing information with other
residents and staff about such offenders' prior convictions violates
the Privacy Rule issued under the Health Insurance Portability and
Accountability Act of 1996 (HIPAA). For example, while some state
agency officials indicated that the HIPAA Privacy Rule only applied to
individuals' health information and not their prior convictions, some
long-term care facility officials thought the HIPAA Privacy Rule
prohibited the sharing of any such information in most cases. Despite
concerns that they may violate the HIPAA Privacy Rule by disclosing
information about the prior convictions of certain residents, some long-
term care facility officials said that they would still notify staff if
they became aware of such residents. We brought the issue of long-term
care facilities' uncertainty regarding the applicability of the HIPAA
Privacy Rule to the attention of the Department of Health and Human
Services (HHS) in the event that this issue gains more prominence in
the future.
Having a prior conviction typically is not sufficient to subject
offenders to supervision or separation requirements that differ from
those for other residents, according to long-term care facility
officials we interviewed. Instead, these facilities generally base
supervision and separation requirements for residents on behavioral
issues as they arise. Several long-term care ombudsmen, industry
association officials, and facility officials in the states we reviewed
indicated that the residents they are most concerned about in terms of
behavioral problems are those with mental illness, particularly
dementia, for which behaviors are apt to change as the disease
progresses. Officials at only 2 of the 29 long-term care facilities we
contacted said they have a specific policy to separate offenders from
other residents based solely on their prior convictions. Even if long-
term care facility officials wanted to impose different separation and
supervision requirements on offenders, their ability to do so may be
limited. Not only are long-term care facilities not always notified
when individuals with prior convictions enter them, the assessment
tools they use to determine the health care needs of residents
typically do not gather information about prior convictions. In
addition, in the event that a facility obtained such information,
federal and state laws that we reviewed generally do not provide for
specific supervision or separation requirements for facility residents
with prior convictions.
While it was not part of our original objectives to fully evaluate the
NSOR, in the course of our work using the NSOR to identify registered
sex offenders residing in long-term care facilities, we became aware
that the database was incomplete for the seven states we reviewed for
this purpose. Therefore, to ensure that NSOR fulfills its potential as
a national database on registered sex offenders, we recommend that the
Attorney General direct the FBI to assess the completeness of the NSOR,
including state submission rates, and to evaluate options for making it
a more comprehensive national database of registered sex offenders.
In commenting on a draft of this report, the Department of Justice
(DOJ) said it believes the recommendations are unnecessary because the
FBI already performs assessments of the NSOR and explores options for
improvement. While we acknowledge the states' and FBI's efforts and
progress to date, we maintain that the intent of the recommendations
remains valid based on our analysis of a sample of states that
indicates some states are not submitting a significant percentage of
registered sex offender records to the NSOR. However, to be more
specific regarding the need to assess the completeness of NSOR, we
revised the recommendations to clarify that the FBI should assess state
submission rates. HHS commented that the report will help to resolve
much of the uncertainty about the application of the HIPAA Privacy Rule
to the disclosure of conviction information by a facility, including
clarifying that information could be used for activities necessary for
the safe operation of the facility or disclosures that are required by
state laws.
Background:
Nursing homes provide a residential setting and a range of health care
services for individuals who can no longer care for themselves because
of physical or mental limitations. According to the most recent
National Nursing Homes Survey (NNHS), approximately 90 percent of
nursing home residents were age 65 and older and more than two-thirds
were female.[Footnote 4] ICFs-MR are intended to provide a residential
setting for treatment, rehabilitation, and supervision of people who
have mental retardation or other disabilities, such as seizure
disorders or behavior problems. In 2005, approximately 85 percent of
ICF-MR residents were from 22 to 65; only 7 percent of the total
resident population was over 65 years of age. In addition, unlike the
nursing home population, the majority of ICF-MR residents were male.
Approximately 1.5 million individuals lived in Medicaid-and Medicare-
certified nursing homes and ICFs-MR in 2005.[Footnote 5] Federal
Medicaid and Medicare funds accounted for approximately 33 percent of
total spending on nursing homes, and the remaining funds were from a
combination of state, local, and private sources in 2003. In the same
year, ICFs-MR, which are funded almost exclusively by Medicaid,
received about 58 percent of their total funding from federal Medicaid
funds and the remainder from state Medicaid dollars. Medicaid, a joint
federal-state program that finances health care coverage for certain
categories of low-income individuals, is the primary payment source for
long-term care services for older people with low incomes and limited
assets. Medicaid pays for an array of long-term care services,
including services to assist people with activities of daily living
like eating, dressing, bathing, and using the bathroom. In contrast,
Medicare, which covers a variety of health care services and items for
individuals who are 65 or older, have end-stage renal disease, or are
disabled, does not pay for most long-term care services. Medicare
covers short-term skilled nursing care following a hospital stay.
To qualify for Medicare or Medicaid funding, these long-term care
facilities must meet certain federal requirements. For example, they
are required to conduct resident assessments that examine areas such as
demographic information, cognition, mood and behavior, psychosocial
well-being, health conditions, and physical functioning. For example,
the Preadmission Screening and Resident Review, which is required by
federal law to determine whether the potential resident needs nursing
home care, includes an assessment of mental capacity. Although federal
regulations require that a resident assessment be conducted prior to
admission to ICFs-MR, there is no standardized assessment tool and
admission can be based on a prior assessment by an outside source.
Individuals being admitted to an ICF-MR generally meet certain
criteria, including having an intellectual functioning level below 70
to 75 and significant limitations in two or more adaptive skill
areas.[Footnote 6] In addition, at a minimum, resident assessments are
conducted annually by nursing home and ICF-MR facility staff after
admission in order to continually address a resident's needs. For each
resident for whom they receive Medicare or Medicaid funding, these long-
term care facilities are also required to develop a plan of care that
addresses the resident's medical, social, and other needs, as
determined by the resident assessment. Long-term care facilities are
also required to protect residents' rights and privacy.[Footnote 7] In
addition, the Privacy Rule issued under HIPAA provides individuals with
protections regarding the confidentiality of their health information
and restricts the use and disclosure of individuals' health information
by health care providers, including nursing homes and ICFs-MR.[Footnote
8]
As a condition of Medicare or Medicaid participation, long-term care
facilities must report incidents of abuse according to state
requirements. CMS defines abuse as the willful infliction of injury,
unreasonable confinement, intimidation, or punishment with resulting
physical harm, pain, or mental anguish. Physical abuse generally
includes hitting, slapping, pushing, and sexual abuse, which is
nonconsensual sexual contact or nonconsensual sexual involvement of any
kind. Although the commission of a sexual offense may result in an
incident of abuse, a uniform definition of sexual offense does not
exist, and states define sexual offenses in their respective criminal
codes. Some examples of sexual offenses include rape, sexual assault,
and incest.[Footnote 9] In some states, related sexual offenses include
child pornography and willful indecent exposure in public.
Federal statute established the Jacob Wetterling Crimes Against
Children and Sex Offender Registration Program in 1994.[Footnote 10]
The statute required every state to have a program to register sex
offenders by September 1997, and required the Attorney General to
provide states with guidelines for developing their programs.[Footnote
11] At a minimum, an individual convicted of a criminal offense against
a minor or of a sexually violent offense must register a current
address for 10 years following his/her release from prison or placement
on parole, supervised release, or probation. In addition, an individual
who has one or more prior sexual offense convictions, has been
convicted of an aggravated offense, or is determined to be a sexually
violent predator must register a current address for life.[Footnote 12]
States may impose more stringent registration requirements on a broader
class of offenders than required by federal law. The law also mandates
that registered sex offenders verify their addresses at least annually
and that registered offenders classified as sexually violent predators
verify their addresses quarterly. Registered sex offenders must notify
local law enforcement officials within their state of address changes,
and those who move to a different state must comply with registration
requirements in the new state. States that do not comply with the
Wetterling Program requirements are subject to a 10 percent reduction
in their Byrne Formula Grant law enforcement funding.[Footnote 13]
The statute establishing the Wetterling Program was amended twice in
1996. The first amendment, Megan's Law, required states to release
information about registered sex offenders when necessary to protect
the public, but this law did not specify how states must give
notification.[Footnote 14] The second amendment, the Pam Lychner Sexual
Offender Tracking and Identification Act of 1996,[Footnote 15] mandated
the FBI's creation of a national database now known as the
NSOR.[Footnote 16] According to the FBI, this national database
combines sex offender registries from all of the states to help law
enforcement officials track sex offenders on a national level.
Research on sex offender recidivism suggests that the majority of
individuals previously convicted of sex offenses do not commit
additional sex offenses, with one such study estimating that about 14
percent had a new sex offense charge or conviction within 5 years of
their release from prison, increasing to 27 percent after 20 years. At
the same time, however, research also indicates that sex offenses are
underreported. While it is difficult to predict re-offense for any
individual, certain factors such as sexual deviancy, antisocial
orientation, and an adverse family environment may contribute to a
higher likelihood of a re-offense. Those who have strong social
supports, such as a supportive family and a stable job, may be less
likely to re-offend. In addition, the likelihood of re-offending may
diminish as the sex offender ages.
Federal law requires that registered sex offenders be tracked on a
national and state level; however, parolees are generally monitored and
supervised by each state. Individuals released from prison prior to the
completion of their sentences may be subject to certain conditions and
supervised as parolees for a specified period. Typically the length of
time states set for parole is 1 to 3 years, although certain crimes and
sentencing situations may require more or less time. An individual can
be convicted of a range of crimes from fraud or forgery to murder and
be eligible for parole. As of December 2003, about 775,000 adults were
on parole from federal and state prisons nationwide.
Identification of Offenders Living in Long-Term Care Facilities and
Assessment of the Risk They Pose Limited by Data Shortcomings:
Using the NSOR, we identified 683 registered sex offenders living in
long-term care facilities during 2005. However, this understates the
national prevalence of convicted sex offenders residing in long-term
care facilities for a number of reasons. While the NSOR is a national
database that compiles information about registered sex offenders
submitted by all 50 states and the District of Columbia, it does not
include convicted sex offenders who are not on state registries,
including those sex offenders who are required by law to register but
choose not to comply. It also does not include all registered sex
offenders, as states have had varying degrees of difficulty submitting
their records to the NSOR because of technical problems, lack of
resources, or inability to provide the required FBI number for certain
offenders. Because there is no national data source on parolees that
includes address information, we also obtained parolee databases from
the eight states we reviewed and identified 204 offenders on parole for
non-sex offenses living in long-term care facilities. The risk of abuse
within nursing homes or ICFs-MR by residents with prior convictions is
unclear because states we reviewed do not report the prior convictions
of residents who commit abuse; however, facility administrators we
interviewed more frequently expressed concern about the potential for
abuse by residents with cognitive impairments or mental illness than by
residents with prior convictions.
Most Sex Offenders Identified Were Male, Were under Age 65, and Resided
in a Small Number of Nursing Homes and ICFs-MR:
Using the NSOR, we identified 683 registered sex offenders living in
long-term care facilities during 2005, representing about 0.05 percent
of the total 1.5 million residents of nursing homes and ICFs-MR. (See
app. II.) Of the approximately 16,000 nursing homes and 6,600 ICFs-MR
that participate in Medicare or Medicaid, we identified 3 percent of
nursing homes (470) and 0.7 percent of ICFs-MR (46) as housing at least
1 registered sex offender during 2005.
About 88 percent of the registered sex offenders we identified resided
in nursing homes, while the remaining 12 percent resided in ICFs-MR.
Sex offenders living in nursing homes were younger than the general
nursing home population, while those in ICFs-MR had a similar age
distribution as the general ICF-MR population. About 57 percent of
registered sex offenders we identified as living in nursing homes were
under age 65, compared to about 10 percent of the general nursing home
population, and 30 percent were under age 50. Most sex offenders--95
percent--identified as living in ICFs-MR were under age 65, which is
similar to the age distribution in the general population of these
facilities. Similarly, nearly all--99 percent--registered sex offenders
we identified as residing in long-term care facilities were male, which
is consistent with the gender of registered sex offenders overall.
Among registered sex offenders for whom we had information on the
nature of their crimes, the majority of convictions were for rape and
sexual assault of adults and minors.
Number of Offenders Identified as Living in Long-term Care Facilities
Is Understated:
The number of offenders that we identified as living in long-term care
facilities is understated because of shortcomings in the data.
Specifically, although national in scope, the NSOR does not include
certain convicted sex offenders who are not on state registries because
the registries did not exist at the time they were convicted or
released from prison or because their registration period has expired.
The NSOR also does not include all of the records of sex offenders who
are registered in the states' registries because some states have had
difficulty submitting their records to the NSOR. NSOR records for
convicted sex offenders who chose not to comply with registration
requirements may be incomplete or missing. In addition, since no
national data source for parolees exists that includes parolee
residence information, our data only include numbers of parolees from
the eight states we reviewed.
State Registries Do Not Include All Convicted Sex Offenders:
While some states already had sex offender registries in place, the
Wetterling Program statute mandated that all states implement a
registry by September 1997.[Footnote 17] Most state registries only
include those sex offenders convicted or released from prison after a
specified date, generally after 1990.[Footnote 18] Consequently, those
convicted or released before the specified date were not required to
register and therefore are not included in our analysis. This
limitation may help explain the age distribution of registered sex
offenders we identified as living in nursing homes. While the majority
of offenders identified in nursing homes were under the age of 65, this
could be a consequence of the limited period that sex offender
registries have existed rather than an accurate reflection of the age
distribution of convicted sex offenders living in nursing homes, since
many elderly sex offenders would not be registered if their convictions
predated the implementation of their state's registry.
The nearly 700 registered sex offenders we identified through the NSOR
database as living in long-term care facilities also do not include
convicted sex offenders whose registration period expired or whose
information was missing because they did not comply with registration
requirements. While noncompliance is difficult to track, four of the
reviewed states provided us with estimated noncompliance rates ranging
from 4.5 percent to 25 percent. Similarly, the advocacy organization,
Parents for Megan's Law, released estimates in 2003 that 24 percent of
sex offenders nationally fail to comply with registration requirements.
Sex offenders may fail to comply for several reasons, including a lack
of understanding about registration requirements or to avoid the
possible negative consequences experienced by some registered sex
offenders, such as the loss of a job, harassment, social
stigmatization, or physical assault.
State Submissions to the NSOR Do Not Include All Registered Sex
Offenders:
We found a range of submission rates by state registries to the NSOR,
which suggests that the NSOR may be missing a portion of sex offenders
who are registered in states. Registry administrators from the 20
states that responded to our e-mail questionnaire estimated their
submission rates to be from 46 percent to 100 percent of the total
number of records in their state registries. Most reported that at
least 80 percent of their records were submitted, while 2 states
reported that they were only able to submit about half of their
records. We also compared the total number of sex offenders included in
the state registries to the number included in the NSOR for 7 of the 8
states we reviewed. (See table 1.) The NSOR included about 57 percent
of sex offenders registered in these states, with submission rates
ranging from 1 to 83 percent. For example, Utah had submitted about 1
percent of its registry to the NSOR. While the state intends to fully
submit its registry to the NSOR in the future, it currently lacks the
resources to do so, according to a state official. However, the FBI
considers state participation in the national database to be in
compliance with federal requirements if a state has submitted at least
one record to the NSOR.[Footnote 19] A DOJ official confirmed that all
states have been determined to be in compliance with NSOR submission
requirements, based on FBI notifications regarding each state's
participation in the NSOR, and was not aware of any state that had been
penalized with the loss of Byrne Formula Grant law enforcement funding
solely on the basis of the extent of state NSOR participation.
Table 1: Estimated Submission Rates to NSOR, by States Reviewed, 2005:
State: Florida;
Number of sex offenders listed on state registry: 34,810;
Number of sex offenders listed on NSOR, January 3, 2005: 25,494;
State's submission rate to NSOR (percentage): 73%.
State: Illinois;
Number of sex offenders listed on state registry: 20,690;
Number of sex offenders listed on NSOR, January 3, 2005: 13,349;
State's submission rate to NSOR (percentage): 65%.
State: Minnesota;
Number of sex offenders listed on state registry: [A];
Number of sex offenders listed on NSOR, January 3, 2005: 9,769;
State's submission rate to NSOR (percentage): [A].
State: New Jersey;
Number of sex offenders listed on state registry: 11,382;
Number of sex offenders listed on NSOR, January 3, 2005: 9,454;
State's submission rate to NSOR (percentage): 83%.
State: Ohio[B];
Number of sex offenders listed on state registry: 16,864;
Number of sex offenders listed on NSOR, January 3, 2005: 2,409;
State's submission rate to NSOR (percentage): 14%.
State: Oklahoma;
Number of sex offenders listed on state registry: 5,235;
Number of sex offenders listed on NSOR, January 3, 2005: 4,234;
State's submission rate to NSOR (percentage): 81%.
State: Utah;
Number of sex offenders listed on state registry: 7,409;
Number of sex offenders listed on NSOR, January 3, 2005: 49;
State's submission rate to NSOR (percentage): 1%.
Average: State's submission rate to NSOR (percentage): 57%.
Sources: GAO analysis of the FBI's NSOR as of January 3, 2005; state
sex offender registries as submitted by states to GAO from January
through August 2005.
[A] Minnesota initially submitted to GAO only those offenders residing
in Minnesota who could potentially be identified as nursing home
residents, which was the purpose of our request for the data, and
therefore excluded offenders who were listed as out of state, deported,
homeless, civilly committed, in the witness protection program, or
address unknown. Consequently, we could not determine an overall
submission rate. As of February 2006, Minnesota reported that 73
percent of its active registrants had been accepted by the NSOR.
[B] As of January 3, 2005, Ohio had not submitted the majority of its
sex offender registry because of technical problems, but a state
official reported that the state submitted registry data on computer
disk in August 2005.
[End of table]
Registry administrators from among the 8 states we reviewed and the 20
additional states that responded to our e-mail questionnaire reported
that several factors complicate their efforts to submit complete sex
offender registries to NSOR. For example, registry administrators
frequently responded that they were not able to submit records of
registered sex offenders who did not have FBI numbers. FBI numbers are
required by the FBI for all records submitted to the NSOR to ensure
positive identification of individuals for the purposes of employment
background checks.[Footnote 20] States may lack FBI numbers for several
types of offenders, such as juvenile sex offenders who do not receive
FBI numbers or sex offenders from other states. If a sex offender comes
from out of state, his/her FBI number can be obtained from the state
where the conviction occurred, but it can be labor-intensive if the
other state does not cooperate or never submitted fingerprint
information to establish the offender's FBI number.[Footnote 21]
Registry administrators in two of the states we reviewed estimated that
in recent years about 30 percent of the records they submitted to the
NSOR were rejected as incomplete.[Footnote 22] In addition, states are
required to verify information, including home address, for each
registered offender at least annually and quarterly for registered
offenders classified as sexually violent predators, a process that can
also be labor-intensive.[Footnote 23] If states are unable to verify an
offender's address information, the offender should be considered
noncompliant, and the NSOR record will not be up-to-date nor reflect
current address information. Some states have also experienced
technical difficulties submitting their registry records to the NSOR.
An FBI official told us that states that had registries prior to the
creation of the NSOR had difficulty reprogramming their registry
databases to conform to the NSOR formats. One of the states we reviewed
did not realize until 2005 that only a fraction of its records were
being submitted to the NSOR because of a technical problem, and it is
currently submitting records on computer disks while making plans to
implement a system for automatic electronic submission of its full sex
offender registry to the NSOR.
Although the FBI does not track states' submission rates to the NSOR,
it does periodically assess state participation in the NSOR and
provides assistance to help states improve the comprehensiveness and
accuracy of their registries. In addition to the requirement that
states annually validate registry records, we were informed that the
FBI conducts triennial audits of states' participation in the NSOR.
During fiscal year 2005, the FBI also conducted a fiscal audit,
assessed states' level of participation in the NSOR and requested
information from states about what assistance they need to improve
their participation. DOJ provides grants to help states improve their
law enforcement information systems, which states have utilized for
enhancements to their sex offender registries such as enabling the
automatic transmission of records to the NSOR and for monitoring data
accuracy. DOJ informed us that it also provides training and technical
assistance to states, and that the FBI has an advisory group that is
reviewing issues such as state submission of data to the NSOR and the
process for the verification and validation of NSOR records.
Approximately 200 Parolees Identified as Living in Long-term Care
Facilities in Eight States:
Using data provided by each of the eight states we reviewed, we
identified 204 parolees as residents of long-term care facilities. (See
table 2.) Because there is no national source of data on parolees that
includes their home address information, our numbers are limited to the
eight states and cannot be generalized as representative of all states.
Among parolees for whom we had information on the nature of their
crimes, the convictions were most commonly for burglary, assault,
murder, or drug-related offenses.
Table 2: Parolees Identified as Living in Long-term Care Facilities in
States Reviewed, 2005:
State: California;
Nursing homes: 63;
ICFs-MR: 4;
Total[A]: 67.
State: Florida;
Nursing homes: 7;
ICFs-MR: 0;
Total[A]: 7.
State: Illinois;
Nursing homes: 70;
ICFs-MR: 4;
Total[A]: 74.
State: Minnesota;
Nursing homes: 2;
ICFs-MR: 0;
Total[A]: 2.
State: New Jersey;
Nursing homes: 2;
ICFs-MR: 1;
Total[A]: 3.
State: Ohio;
Nursing homes: 42;
ICFs-MR: 1;
Total[A]: 43.
State: Oklahoma;
Nursing homes: 6;
ICFs-MR: 0;
Total[A]: 6.
State: Utah;
Nursing homes: 2;
ICFs-MR: 0;
Total[A]: 2.
Total: Nursing homes: 194;
ICFs-MR: 10;
Total[A]: 204.
Sources: GAO analysis of parolee databases for eight reviewed states,
January through September 2005; CMS's OSCAR database, 2004.
[A] Results do not include parolees who were also listed on state sex
offender registries or the NSOR.
[End of table]
Abuse by Offenders Who Live in Long-term Care Facilities Not Tracked,
but Risk May Not Be Widespread:
Long-term care facilities participating in Medicare or Medicaid are
required to report all allegations of abuse and neglect to officials in
accordance with applicable state law and, in the case of nursing homes,
this includes reporting to the state.[Footnote 24] This requirement
would encompass the reporting of abuse committed by staff or residents.
In the eight states we reviewed, long-term care facilities do stratify
reported abuse into categories, such as physical, sexual, financial, or
resident-to-resident abuse; however, they do not report information on
whether residents alleged to have caused abuse have prior convictions.
The National Ombudsman Reporting System (NORS) also collects nursing
home abuse data on a national level and includes various categories of
abuse, such as incidents that occur between residents and incidents
perpetrated by nursing home staff. Similar to the states we reviewed,
NORS does not track whether residents alleged to have abused other
residents have prior convictions.
Because data are not available nationally or in our reviewed states on
abuse perpetrated specifically by residents who have prior convictions,
the potential risk for abuse by offenders residing in long-term care
facilities cannot be accurately estimated. However, based on a number
of factors, including the small percentage of facilities identified as
housing offenders, the risk may not be widespread. For example,
offenders residing in nursing homes or ICFs-MR who have significant
physical limitations may be unable to commit abuse against other
residents. In addition, research on recidivism by sex offenders also
suggests that most do not re-offend and that the risk of re-offending
may decline with age.
In our interviews with officials of long-term care facilities, state
nursing home associations, and state ombudsmen for long-term care,
concern was more frequently expressed about the behavior and potential
for abuse by cognitively impaired and mentally ill residents than about
abuse by residents with prior convictions. Several of those interviewed
mentioned they were concerned about the potential for abuse by
residents with Alzheimer's disease or dementia, a disease for which
their behavior may change significantly after their admission and
original assessment. The administrator of a facility in Ohio that
specializes in residents with behavioral issues and that has housed
multiple offenders said that he has had fewer problems with his
residents who are identified sex offenders than with other residents
who have behavioral problems. Several sources, including ombudsmen, a
researcher, and a nursing home advocate, suggested that a resident's
behavioral issues are sometimes not fully disclosed to a nursing home
upon admission or that some nursing homes with low occupancy may be
more likely than others to accept mentally ill patients in order to
increase their occupancy levels.
Long-term care facility officials we interviewed, some of whom knew
they have had offenders as residents and some of whom spoke
hypothetically, said they would use their judgment to determine whether
a registered sex offender or parolee could appropriately be cared for
in their facilities. Several long-term care facility administrators
told us that if they discovered a resident was an offender, they would
evaluate the potential risk posed by that individual on a case-by-case
basis. For example, the facility administrator may determine the degree
of safety risk on the basis of whether the offender's health status is
such that the individual cannot move independently. If the
administrator determines that the risk is greater than the long-term
care facility can manage, the facility may choose not to admit the
offender.
States Required to Notify Community about Registered Sex Offenders, but
Extent of Notification Varies:
Federal law requires state law enforcement agencies to release relevant
information about registered sex offenders when necessary to protect
the public, but we did not identify a similar federal requirement
pertaining to the parolee population. The federal requirement for
registered sex offender notification allows states to implement this
requirement at their discretion, within broad federal guidelines.
Consequently, the extent to which states' community notification laws
apply to all registered sex offenders or explicitly include nursing
homes and ICFs-MR varies. Absent direct notification, these facilities
may not know they house offenders or may only become aware of offenders
through other means. For example, in the case of registered sex
offenders, facilities may identify some offenders by reviewing publicly
available Web sites, while for parolees, they may become aware of the
person's criminal background from a parole officer. When facility
residents are known offenders, differing interpretations exist among
states, industry, and long-term care facility officials as to whether
sharing information about their prior convictions may violate the
Privacy Rule issued by HHS under HIPAA.
Federal Law Requires States to Provide Community Notification for
Registered Sex Offenders, but Direct Notification to Long-term Care
Facilities Varied:
Megan's Law, a 1996 amendment to the Wetterling Program statute,
required each state to release information about registered sex
offenders when necessary to protect the public. The law applied
specifically to registered sex offenders and not to convicted sex
offenders who were not obligated to register.[Footnote 25] Although
Megan's Law stipulated that information about the victims of registered
sex offenders was not to be released, it otherwise did not specify the
information to be disseminated about registered sex offenders, did not
mandate that community notification be uniform for all registered sex
offenders, and did not specify how states were to release information.
Consequently, states' community notification laws vary, particularly in
terms of the extent to which notification by law enforcement entities
applies to all registered sex offenders. Such variation was evident in
the notification laws of the eight states we reviewed. While two states
we reviewed--Illinois and Utah--apply community notification
requirements to all registered sex offenders uniformly in each
state,[Footnote 26] the community notification requirements in the
remaining six states--California, Florida, Minnesota, New Jersey, Ohio,
and Oklahoma--vary depending on the crime committed by the registered
sex offender.[Footnote 27] For example, New Jersey classifies its
registered sex offenders into three categories based on their assessed
risk of re-offending. For sex offenders determined to be lowest risk,
state law requires notification of law enforcement agencies. In
contrast, for the highest risk sex offenders, the law requires
notification of additional entities, including schools, religious and
youth organizations, and those likely to encounter the offender.
Similarly, Florida's law explicitly requires broad community
notification when individuals designated to be sexual predators reside
in the community, but it does not require broad notification for other
sex offenders.
Variation also exists in the extent to which state community
notification laws explicitly require the notification of long-term care
facilities. Four states we reviewed--California, Illinois, Minnesota,
and Oklahoma--passed laws in summer and fall 2005 that specified long-
term care facilities as entities to be notified for at least some
registered sex offenders who entered them.[Footnote 28],[Footnote 29]
Notification in these states is conducted by individual facility
officials, state or law enforcement officials, or registered sex
offenders themselves. For example, Illinois' law requires long-term
care facilities to determine whether each resident or potential
resident is a registered sex offender and to notify staff, residents or
their legal guardians, and facility visitors when offenders are
residents.[Footnote 30] Similarly, Oklahoma's law requires notification
of these facilities by several methods. For example, the Department of
Corrections must notify the Department of Health when any person in its
custody seeks placement in these facilities, and the Department of
Health must then notify the facility of the potential for the placement
of a registered sex offender. When residents are determined to be
registered sex offenders, information about them must be displayed in
the facility in an area that is accessible to staff, visitors, and
residents. The law in California also requires state officials to
notify long-term care facilities when registered sex offenders are
released to them from the Department of Corrections and Rehabilitation,
the State Department of Mental Health, or other state- operated places
of confinement. The law does not provide for such notification when sex
offenders enter long-term care facilities from the community. Unlike
other states we reviewed, Minnesota's law requires registered sex
offenders to disclose their status if seeking admission to long-term
care facilities. Upon receiving such notification from certain
registered sex offenders, long-term care facilities are responsible for
sharing this information with other residents or their legal guardians.
Minnesota also requires law enforcement officials to notify health care
facilities if they become aware that a registered sex offender has been
admitted for care.
The other four states we reviewed--Florida, New Jersey, Ohio, and Utah-
-do not specifically require the notification of long-term care
facilities when registered sex offenders enter them. Long-term care
facilities in these states, or in states where community notification
of such facilities is not required for all registered sex offenders,
may not be aware of residents who are offenders or must rely on other
methods to identify such individuals. For instance, administrators we
interviewed at 8 of the 29 long-term care facilities indicated that one
or more registered sex offenders had lived in their facilities for some
period. Each of these 8 long-term care facilities was notified about
the registered sex offenders, although the method of notification
varied. For example, while 4 facilities were notified before the
offenders entered them, either by offenders' family members or the
state department of corrections, the 4 remaining facilities were
notified after the registered sex offenders were admitted, either by
local law enforcement officials who were verifying sex offenders'
residential addresses or by an advocacy group conducting research on
registered sex offenders living in certain long-term care facilities.
Long-term care facilities may access states' publicly available sex
offender registry Web sites to determine where registered sex offenders
reside. A 2003 amendment to the Wetterling Program statute required
states to maintain a publicly available Web site with information about
registered sex offenders.[Footnote 31] The law did not provide
instruction on how these Web sites should be designed or what specific
information should be included.[Footnote 32] Depending on the state,
these Web sites provide varying amounts of information to the public
about registered sex offenders. For example, the Web site registry in
each of the eight states we reviewed included some address information
for all or a portion of the state's adult registered sex offenders.
Five states we reviewed--Florida, Illinois, Ohio, Oklahoma, and Utah--
provided the full residential address of all the state's adult
registered sex offenders, while three others--California, Minnesota,
and New Jersey--included certain registered sex offenders on their Web
sites and in some cases did not always list their full addresses. For
example, Minnesota separates offenders into three levels and includes
Level 3 offenders--those deemed predatory or most likely to re-offend-
-on its Web site. Approximately 6 percent of the registered sex
offenders in this state who are living in the community are assigned
the highest risk level. Similarly, New Jersey includes certain moderate
and all high-risk registered sex offenders on its Web site, which,
according to a state official, represents about 16 percent of all
registered sex offenders in the state. In California, a state official
told us that its Web site registry includes at least some address
information for approximately 74 percent of the state's registered sex
offenders, including full address information for about 57 percent who
committed crimes considered to be the most serious. The remaining
approximately 26 percent of the state's registered sex offenders are
not posted on the Web site because they committed less severe offenses
or are excluded from the Web site for various reasons, such as not
being designated sexually violent predators. In addition, for the
registered sex offenders listed on the Web sites of the eight states we
reviewed, information is included about the crimes registered sex
offenders committed; their names, nicknames, or aliases, when
applicable; date of birth or age; and race or ethnicity.
While the NSOR database is not directly accessible by the general
public, long-term care facilities can access the recently developed
National Sex Offender Public Registry maintained by the DOJ.[Footnote
33] This Web site, which was first launched in May 2005, seeks to
compile public sex offender registry information available through
state Web sites, and as of January 2006, it included public registry
data from all but two states. Although this Web site provides the
public with one-stop access to states' online sex offender registries,
it may be of limited usefulness because states' sex offender registry
Web sites, as described above, do not always include a comprehensive
list of registered sex offenders.
Although Community Notification of Parolees Not Uniformly Required,
Parolees in Long-term Care Facilities Often Identified by Law
Enforcement:
We did not identify a federal law specifying community notification
requirements for law enforcement when parolees enter the community that
was similar to the federal law for registered sex offenders. However,
three of the eight states we reviewed--Illinois, Minnesota, and
Oklahoma--passed laws in summer 2005 that require community
notification for offenders who have committed crimes other than sex
offenses, including some offenders who are parolees.[Footnote 34]
Illinois' law requires the state Department of Corrections to give some
information to certain long-term care facilities when parolees or
certain other offenders become residents. In addition, these long-term
care facilities are required to notify the other residents when
parolees reside in their facilities. In Minnesota and Oklahoma, long-
term care facilities receive community notification for some
individuals convicted of non-sex offenses, including some parolees,
under the same requirements as those for registered sex offenders.
Minnesota's law applies to individuals convicted of some crimes,
including murder or kidnapping. Oklahoma's law requires notification
for individuals who are required to register under the Mary Rippy
Violent Crime Offenders Registration Act, which includes individuals
convicted of crimes such as murder or manslaughter in the first degree.
Department of Corrections' officials or other authorities in each of
the eight states we reviewed stated that as a matter of practice, they
generally notified long-term care facilities when individuals released
from prison, including parolees, are placed in such facilities. For
example, according to officials in Ohio's Department of Rehabilitation
and Corrections, when an inmate who needs long-term care is paroled, a
parole officer works with the facility to ensure that medical records
are transferred and that a plan of care is established to meet the
needs of the parolee.
Officials Uncertain about Ability of Long-term Care Facilities to
Disclose Offender Information under the HIPAA Privacy Rule:
While the HIPAA Privacy Rule applies to individually identifiable
health information, differing interpretations exist among state,
industry, and long-term care facility officials we interviewed in the
eight states regarding the applicability of the rule to facilities'
efforts to notify others about residents who have prior convictions,
such as those who are registered sex offenders or parolees. These
difficulties existed regardless of whether this information was
obtained from a medical record or in another way, such as from a law
enforcement official. For instance, long-term care agency officials
from three states we reviewed indicated that protection of health
information under the HIPAA Privacy Rule did not extend to information
on prior convictions. In addition, long-term care facility and other
agency officials from these and three other states we reviewed
maintained that it was permissible to disclose information about a
resident's prior convictions to employees in a long-term care facility
who needed to know in order to provide care for the resident. Yet other
officials in six of the eight states we reviewed told us they were
either unsure whether the HIPAA Privacy Rule would be violated by
sharing information about the prior convictions of any offender living
in a facility or that they believed the HIPAA Privacy Rule did not
apply to disclosing such information about residents who are offenders.
Officials at 11 of the 29 long-term care facilities we interviewed in
eight states said that they were concerned they would violate the HIPAA
Privacy Rule if they disclosed information about the prior convictions
of offenders living in their respective facilities, but indicated that
they would notify staff if they became aware of such residents.
We brought the issue of long-term care facilities' uncertainty
regarding the applicability of the HIPAA Privacy Rule to the attention
of an official of the Department of Health and Human Services Office
for Civil Rights (HHS-OCR), the federal entity responsible for
implementing and enforcing the HIPAA Privacy Rule. The official
indicated that HHS-OCR has not published regulations or other guidance
specifically regarding the applicability of the HIPAA Privacy Rule to
the disclosure of information related to prior convictions of long-term
care facility residents. However, the official stated that to the
extent that such information is maintained by long-term care facilities
as protected health information under the HIPAA Privacy Rule, such
information could be used or disclosed for specifically permitted
purposes, such as when necessary to run the health care operations of a
facility or required by another federal or state law. In addition, the
HHS-OCR official indicated that affected entities, such as long-term
care facilities, would need to make the determination on a case-by-case
basis as to whether the information is protected health information,
and if so, whether its intended use or disclosure is permitted by the
HIPAA Privacy Rule. The official added that long-term care facilities
should consult their legal counsel if they have questions in making
this determination. Although HHS-OCR does maintain a list of answers to
frequently asked questions about the HIPAA Privacy Rule on its Web
site, it does not cover this specific issue. In commenting on a draft
of this report, Department of Corrections officials from one state we
reviewed stated that it would be helpful for HHS-OCR to describe some
situations in which it believes HIPAA would not be applicable with
regard to the disclosure of information about offenders admitted to
health care facilities. They stated that HHS-OCR's direction to
approach each case individually is not very helpful and that additional
guidance would be very useful.
Supervision and Separation of Long-Term Care Facility Residents Largely
Based on Behavior, Not Prior Convictions:
Residents' prior convictions alone would not be sufficient in most
cases to subject them to supervision or separation requirements that
differed from other residents, according to facility officials we
interviewed. Administrators at only 2 of the 29 long-term care
facilities we contacted indicated that they have a specific policy to
separate offenders from other residents based solely on their prior
convictions. Instead, long-term care facilities in the eight states we
reviewed typically base supervision and separation decisions on
behavioral issues that arise. For example, in the states we reviewed,
several long-term care ombudsmen, industry association officials, and
facility officials we interviewed indicated that the residents they
have particular concerns about, in terms of behavioral problems, are
those with mental illness, such as dementia, for which behaviors are
apt to change as the disease progresses.
Although most officials we spoke with at long-term care facilities in
the eight states we reviewed do not supervise or separate offenders
based solely on their prior convictions, some officials indicated the
potential for a future need for residential facilities separate from
long-term care facilities exclusively for certain offenders. For
instance, Minnesota state officials said that some long-term care
facilities may be hesitant to accept sex offenders as residents in the
future, believing that certain sex offenders pose a risk to the safety
of other residents. Therefore, a state commission has recommended the
development of secure health care settings that would serve people who
have committed certain sex offenses and who may not otherwise have
access to services. In order to establish this facility, state
officials are working with federal officials to resolve issues related
to balancing resident rights with the safety interests of the larger
community.
Even if long-term care facility officials wanted to impose different
supervision and separation requirements on offenders, numerous factors
could affect their ability to do so. For example, as previously noted,
long-term care facilities were not always notified when individuals
with prior convictions entered them. Federal laws we reviewed do not
require long-term care facilities to obtain information about prior
convictions, and among the eight states we reviewed, only Illinois had
such a requirement.[Footnote 35] In addition, assessment tools long-
term care facilities in these eight states use to determine the health
care needs of residents usually are not designed to gather information
about prior convictions. Even if facilities obtained such information,
federal and state laws that we reviewed generally do not provide for
specific supervision or separation practices for facility residents
with prior convictions.
Conclusions:
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. Facility
officials we interviewed more frequently expressed concerns about the
behavior and potential for abuse by cognitively impaired and mentally
ill residents than by offenders who may have no behavioral issues.
Facilities already document problematic behaviors and assess the risk
of individuals through resident assessments and care planning
procedures, and when they accept residents with behavioral issues or
such issues arise after admission, they must appropriately address
those behaviors through the care planning for these individuals or
transfer them to facilities better equipped to handle such residents.
In addition, focusing on prior convictions alone can be problematic in
that some offenders, such as those with certain physical impairments,
likely do not pose a risk to other residents. Nonetheless, in the
interest of identifying potential risks and taking precautionary
measures, four states we reviewed--California, Illinois, Oklahoma, and
Minnesota--enacted measures in 2005 to require notification to long-
term care facilities when offenders are residents. Assessing their
experiences as they implement these measures over time, including any
negative impact on offenders' access to long-term care, may be
instructive for other states with similar concerns.
While it was not part of our original objectives to fully evaluate the
NSOR, it was our primary data source for identifying registered sex
offenders residing in long-term care facilities. In the course of our
analysis, we became aware that the FBI's NSOR, which links states' sex
offender registration programs so that law enforcement agencies can
identify sex offenders regardless of which state maintains their
registration, was incomplete for the seven states we reviewed for this
purpose. States face various barriers to fully submitting their
registry records to the NSOR, including difficulties such as obtaining
the required FBI number for each offender and a lack of staff
resources. While the FBI has been reviewing issues related to states'
submission of records to the NSOR, it currently does not track
submission rates, so the proportion of state records missing from the
NSOR is not precisely known. Continued improvements in the
comprehensiveness of the NSOR can enhance the ability of local law
enforcement agencies to identify offenders and notify the community,
including long-term care facilities, where appropriate.
Recommendations for Executive Action:
We recommend that the Attorney General direct the FBI to take the
following two actions:
* assess the completeness of the NSOR, including state submission
rates, and:
* evaluate options for making it a more a comprehensive national
database of registered sex offenders.
Agency and State Comments and Our Evaluation:
We provided copies of a draft of this report for comment to DOJ; HHS;
and the eight states we reviewed: California, Florida, Illinois,
Minnesota, New Jersey, Ohio, Oklahoma, and Utah. We received written
responses from DOJ and HHS, which are included in this report as
appendixes III and IV, respectively. We also received comments from
California, Florida, Illinois, Minnesota, New Jersey, and Oklahoma.
These agency and state comments and our evaluation follow.
DOJ commented that the recommendations are unnecessary because the FBI
already performs assessments of the NSOR and explores options for
improvement. For example, DOJ said that the FBI conducts triennial
audits of states' NSOR participation, provides training and technical
assistance to states, and seeks input from states about what assistance
they need to improve their level of participation in the NSOR. DOJ
characterized our evaluation as incomplete because we did not ask for
information about the entire NSOR program or include a more extensive
discussion in the draft report of their efforts to improve the NSOR. We
obtained information about these efforts over the course of our work
through interviews with FBI staff, documents available on their Web
site, and through state officials. Because a comprehensive evaluation
of the NSOR was not one of our reporting objectives, we did not include
a complete listing of the FBI's assistance to states in our draft
report. To respond to DOJ's comments, we revised the report to include
additional information about the FBI's initiatives to assist states in
data submission and to assess the accuracy of NSOR records. Including
this additional information, however, does not alter our overall
finding concerning the discrepancy between state sex offender
registries and states' NSOR submissions.
We acknowledge, as DOJ pointed out in its comments, that there may be
valid reasons for a certain amount of discrepancy between state
registries and their NSOR submissions, such as if a state chooses not
to submit the records of sex offenders still incarcerated since their
whereabouts do not need to be tracked by the NSOR until their release.
We also acknowledge the challenge states face in maintaining current
and accurate information about registered sex offenders. However, we
continue to believe that the intent of the recommendations remains
valid because of the evidence we analyzed for a sample of states that a
significant percentage of registered sex offender records are not being
successfully submitted by some states to the NSOR, despite the states'
and FBI's efforts to date. We believe the FBI needs to track state
submission rates to the NSOR as a measure of comprehensiveness that can
quantify the remaining gap as well as improvements over time. We
therefore revised the first recommendation to specify that we are
recommending that the FBI assess state submission rates as a means of
assessing the completeness of NSOR.
DOJ commented on three additional issues:
* The risk posed by offenders residing in long-term care facilities.
DOJ suggested that GAO discounted the risk posed by sex offenders
residing in long-term care facilities based on insufficient evidence.
We agree that the placement of a sex offender into a long-term care
facility requires careful evaluation, particularly as the often-frail
condition of long-term care residents makes them vulnerable to
victimization. Based on our research and interviews with administrators
of long-term care facilities, it is our view that the risk posed by
offenders should be considered on a case-by-case basis. The presumption
that offenders pose a threat to other residents could lead facilities
to unnecessarily deny admission to low-risk offenders or unnecessarily
seclude them from other residents. DOJ did not provide any new evidence
to support its assertion that sex offenders pose a greater threat than
the analysis we presented in the report.
* The likelihood that convicted sex offenders will commit additional
sex offenses after their release from prison. DOJ objected to our
citation of sex offender recidivism rates of 14 percent because they
were based on only a 5-year post-incarceration period, saying the
period was too short to be the basis of inferences about the likelihood
that a sex offender will commit additional sex offenses, and because of
evidence that sex offenses are underreported. We revised the report to
clarify that the same research also cites 20-year sex offender
recidivism rates of 27 percent.
* The usefulness of the NSOR in assisting law enforcement to identify
sex offenders residing in long-term care facilities. DOJ questioned
GAO's assertion that improvements in the comprehensiveness of the NSOR
would improve the ability of local law enforcement to identify sex
offenders residing in nursing homes, commenting that offenders would
either already be on the state registry and thus identifiable or they
would not be registered and therefore not included in the NSOR. We
believe that a more comprehensive NSOR would improve the tracking of
sex offenders who enter long-term care facilities in the same way it
improves the tracking of sex offenders generally. If offenders are
registered in one state but move to another state and fail to register,
their records could be in the NSOR from the original state but not on
the registry of the second state. A more comprehensive NSOR thus better
ensures the national tracking of sex offenders who may choose to cross
state lines.
HHS commented that this report brought to its attention the uncertainty
that some long-term care facility officials have about the application
of the HIPAA Privacy Rule to the disclosure of conviction information,
as well as the issue that future guidance may be needed. HHS commented
that the report will help to resolve the uncertainty about the HIPAA
Privacy Rule, including clarifying that disclosures could be allowed
for activities necessary for the safe operation of the facility or as
required by state laws.
DOJ, HHS, and the states also provided technical comments, which we
incorporated as appropriate.
As arranged with your offices, unless you publicly announce the
contents of this report earlier, we plan no further distribution of it
until 30 days after its issue date. At that time, we will send copies
to the Attorney General, the Secretary of Health and Human Services,
and other interested parties. We will also make copies available to
others upon request. This report is also available at no charge on
GAO's Web site at [Hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-7118 or allenk@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix V.
Signed By:
Kathryn G. Allen:
Director:
Health Care:
[End of section]
Appendix I: Scope and Methodology:
To determine the prevalence of registered sex offenders residing in
long-term care facilities nationwide, we matched the addresses of
registered sex offenders listed in the Federal Bureau of
Investigation's (FBI) National Sex Offender Registry (NSOR) as of
January 3, 2005, with the addresses of nursing homes and intermediate
care facilities for people with mental retardation (ICF-MR) listed in
the Centers for Medicare & Medicaid Services' (CMS) Online Survey,
Certification and Reporting system (OSCAR) database. After
standardizing address spellings and abbreviations, we used SAS, a
statistical analysis program, to compare registered sex offender and
long-term care facility addresses. Using a SAS function that quantifies
the magnitude of difference between two text variables, we identified
exact matches as well as near matches where the addresses differed
slightly. We manually reviewed the addresses that differed slightly to
determine if they were the same address.
To evaluate the comprehensiveness of the NSOR, we requested the full
state sex offender registries from 8 states--California, Florida,
Illinois, Minnesota, Ohio, Oklahoma, New Jersey, and Utah--in order to
compare the number of records in each registry to the number of records
in the NSOR for that state. We chose these 8 states on the basis of a
number of criteria, including variation in geographic location and in
the number of registered sex offenders identified as living in long-
term care facilities based on our preliminary analyses. California
state officials did not provide us with the state's sex offender
registry in view of their concerns with state privacy laws. We also
interviewed FBI staff about the management of the NSOR database. To
obtain information about the administration and content of state
registries, including their submission of records to the NSOR, we
interviewed state registry administrators from the 8 states we reviewed
and submitted a questionnaire via e-mail to the remaining 42 states,
receiving responses from 20 of them.
Since no national data source on parolees that includes address
information exists, we obtained parolee databases from each of the
eight states we reviewed. We matched parolee addresses to nursing homes
and ICFs-MR in OSCAR using the same methods we used for our analysis of
NSOR and state sex offender registries.
We excluded some records from our analysis because there was no valid
domestic address for the offender. Table 3 shows the number of records
we analyzed from all data sources for both registered sex offenders and
parolees, and the number of records excluded from each source because
of missing, invalid, or otherwise unusable address information.
Table 3: Validity of Offender Address Data by Data Source:
Validity of offender address data : State abbreviation does not match
one of 50 states or Washington, D.C;
NSOR: Number of records: 27,141;
NSOR: Share of total: 7%;
Parolee data from eight reviewed states: Number of records: N/A;
Parolee data from eight reviewed states: Share of total: N/A.
Validity of offender address data : Offender incarcerated or deported;
NSOR: Number of records: 23,863;
NSOR: Share of total: 6%;
Parolee data from eight reviewed states: Number of records: 529;
Parolee data from eight reviewed states: Share of total: 0%.
Validity of offender address data : Offender transient, homeless, or
address unknown;
NSOR: Number of records: 5,936;
NSOR: Share of total: 2%;
Parolee data from eight reviewed states: Number of records: 1,653;
Parolee data from eight reviewed states: Share of total: 1%.
Validity of offender address data : Address listed is invalid;
NSOR: Number of records: 8,775;
NSOR: Share of total: 2%;
Parolee data from eight reviewed states: Number of records: 11,879;
Parolee data from eight reviewed states: Share of total: 5%.
Validity of offender address data : City/state does not match zip code;
NSOR: Number of records: 327;
NSOR: Share of total: 0%;
Parolee data from eight reviewed states: Number of records: 12;
Parolee data from eight reviewed states: Share of total: 0%.
Validity of offender address data : Valid address;
NSOR: Number of records: 304,489;
NSOR: Share of total: 82%;
Parolee data from eight reviewed states: Number of records: 248,290;
Parolee data from eight reviewed states: Share of total: 95%.
Validity of offender address data : All;
NSOR: Number of records: 370,531;
NSOR: Share of total: 100%;
Parolee data from eight reviewed states: Number of records: 262,363;
Parolee data from eight reviewed states: Share of total: 100%.
Sources: GAO analysis of the NSOR, 2005; GAO analysis of parolee
databases for eight reviewed states obtained March through September
2005.
[End of table]
To obtain information about resident abuse perpetrated by registered
sex offenders and parolees, we reviewed existing research and prior GAO
reports. We also interviewed long-term care facility administrators in
the eight states we reviewed, including administrators at facilities
with registered sex offenders as residents, as well as state department
of health and industry association officials and ombudsmen. To identify
facilities for administrator interviews, we initially chose four long-
term care facilities in each of the eight states we reviewed. These
facilities were chosen from two groups of facilities based on our
initial analysis of NSOR and OSCAR data. One group comprised facilities
with registered sex offender matches and the other group did not have
any such matches, and when possible, we selected two facilities from
each grouping. If a selected facility refused our request for an
interview, we selected another facility as a replacement from the same
group. If a state did not have enough facilities with or without sex
offenders to complete two interviews from each group of facilities, we
used facilities from the other group. In all, we interviewed
administrators at 29 long-term care facilities, 11 with registered sex
offender matches and 18 without matches. We achieved a 91 percent
response rate for the facility interviews.
To determine whether federal laws provide for notification of facility
staff, residents, and residents' families when sex offenders or
parolees live in long-term care facilities or for the supervision and
separation of sex offenders and parolees living in these facilities, we
reviewed federal laws and interviewed Department of Justice and CMS
officials. We also interviewed Department of Health and Human Services
Office for Civil Rights officials about the applicability of the Health
Insurance Portability and Accountability Act of 1996 Privacy Rule to
the notification of facilities about residents who are sex offenders or
parolees.
To determine whether states we reviewed have laws or long-term care
facilities have practices that provide for notification of these
individuals and to determine the extent to which these individuals are
subject to supervision and separation requirements that differ from
those for other residents, we reviewed laws and interviewed state
officials responsible for long-term care facility licensing, industry
officials, long-term care ombudsmen, and the administrators at 29 long-
term care facilities, which were chosen based on the criteria discussed
above. We also interviewed Department of Corrections' officials
regarding their efforts to inform facilities about their placement of
parolees in them. To determine what information on sex offenders is
available to the public, we also reviewed state sex offender Web site
registries available in the states we reviewed.
The key sources used to identify registered sex offenders and parolees
living in long-term care facilities included CMS's OSCAR database, the
NSOR, and parolee databases from selected states. To assess the
reliability of these data, we conducted electronic data testing,
reviewed relevant documentation, and interviewed knowledgeable agency
officials about the data quality control procedures. We determined that
while the NSOR does not include all registered or convicted sex
offenders, its records are regularly audited and are sufficiently
reliable for the purposes of this report. The lack of comprehensiveness
of the data was evaluated and taken into account in our discussion of
the results. The OSCAR database and state parolee databases were also
found to be sufficiently reliable for our purposes.
We conducted our work from September 2004 through February 2006 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Registered Sex Offenders Living in Nursing Homes and ICFs-
MR:
To determine the prevalence of registered sex offenders residing in
long-term care facilities nationwide, we matched the addresses of
registered sex offenders listed in the NSOR as of January 3, 2005, with
the addresses of nursing homes and ICFs-MR listed in CMS's OSCAR
database. Using this methodology we identified 683 registered sex
offenders living in long-term care facilities. The number of registered
sex offenders identified as residing in long-term care facilities in
each state varied considerably, ranging from 0 to 144, as demonstrated
in table 4.
Table 4: Registered Sex Offenders Identified as Living in Nursing Homes
and ICFs-MR, by State, 2005:
State: Alabama;
Nursing homes: 1;
ICFs-MR: 0;
Total: 1.
State: Alaska;
Nursing homes: 3;
ICFs-MR: 0;
Total: 3.
State: Arizona;
Nursing homes: 15;
ICFs-MR: 0;
Total: 15.
State: Arkansas;
Nursing homes: 10;
ICFs-MR: 1;
Total: 11.
State: California;
Nursing homes: 141;
ICFs-MR: 3;
Total: 144.
State: Colorado;
Nursing homes: 9;
ICFs-MR: 6;
Total: 15.
State: Connecticut;
Nursing homes: 9;
ICFs-MR: 2;
Total: 11.
State: Delaware;
Nursing homes: 6;
ICFs-MR: 0;
Total: 6.
State: District of Columbia;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Florida;
Nursing homes: 31;
ICFs-MR: 4;
Total: 35.
State: Georgia;
Nursing homes: 14;
ICFs-MR: 0;
Total: 14.
State: Hawaii;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Idaho;
Nursing homes: 5;
ICFs-MR: 7;
Total: 12.
State: Illinois;
Nursing homes: 78;
ICFs-MR: 2;
Total: 80.
State: Indiana;
Nursing homes: 3;
ICFs-MR: 1;
Total: 4.
State: Iowa;
Nursing homes: 9;
ICFs-MR: 5;
Total: 14.
State: Kansas;
Nursing homes: 9;
ICFs-MR: 1;
Total: 10.
State: Kentucky;
Nursing homes: 5;
ICFs-MR: 0;
Total: 5.
State: Louisiana;
Nursing homes: 11;
ICFs-MR: 2;
Total: 13.
State: Maine;
Nursing homes: 3;
ICFs-MR: 0;
Total: 3.
State: Maryland;
Nursing homes: 2;
ICFs-MR: 0;
Total: 2.
State: Massachusetts;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Michigan;
Nursing homes: 18;
ICFs-MR: 1;
Total: 19.
State: Minnesota;
Nursing homes: 22;
ICFs-MR: 3;
Total: 25.
State: Mississippi;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Missouri;
Nursing homes: 19;
ICFs-MR: 2;
Total: 21.
State: Montana;
Nursing homes: 1;
ICFs-MR: 0;
Total: 1.
State: Nebraska;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Nevada;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: New Hampshire;
Nursing homes: 4;
ICFs-MR: 0;
Total: 4.
State: New Jersey;
Nursing homes: 12;
ICFs-MR: 0;
Total: 12.
State: New Mexico;
Nursing homes: 13;
ICFs-MR: 2;
Total: 15.
State: New York;
Nursing homes: 10;
ICFs-MR: 23;
Total: 33.
State: North Carolina;
Nursing homes: 10;
ICFs-MR: 0;
Total: 10.
State: North Dakota;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Ohio;
Nursing homes: 3;
ICFs-MR: 0;
Total: 3.
State: Oklahoma;
Nursing homes: 10;
ICFs-MR: 1;
Total: 11.
State: Oregon;
Nursing homes: 6;
ICFs-MR: 0;
Total: 6.
State: Pennsylvania;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Rhode Island;
Nursing homes: 1;
ICFs-MR: 0;
Total: 1.
State: South Carolina;
Nursing homes: 1;
ICFs-MR: 3;
Total: 4.
State: South Dakota;
Nursing homes: 11;
ICFs-MR: 0;
Total: 11.
State: Tennessee;
Nursing homes: 1;
ICFs-MR: 0;
Total: 1.
State: Texas;
Nursing homes: 61;
ICFs-MR: 8;
Total: 69.
State: Utah;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Vermont;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
State: Virginia;
Nursing homes: 7;
ICFs-MR: 2;
Total: 9.
State: Washington;
Nursing homes: 8;
ICFs-MR: 0;
Total: 8.
State: West Virginia;
Nursing homes: 1;
ICFs-MR: 0;
Total: 1.
State: Wisconsin;
Nursing homes: 20;
ICFs-MR: 1;
Total: 21.
State: Wyoming;
Nursing homes: 0;
ICFs-MR: 0;
Total: 0.
Total: Nursing homes: 603;
ICFs-MR: 80;
Total: 683.
Sources: GAO analysis of the FBI's NSOR as of January 3, 2005; CMS's
OSCAR database, 2004.
[End of table]
[End of section]
Appendix III: Comments from the Department of Justice:
U.S. Department of Justice:
Washington, D.C. 20530:
March 9, 2006:
Ms. Kathryn G. Allen:
Director:
Health Care:
United States Government Accountability Office:
Washington, D.C. 20548:
Re: GAO REPORT 06-326:
Dear Ms. Allen:
Thank you for the opportunity to review the Government Accountability
Office (GAO) draft report entitled "LONG-TERM CARE FACILITIES:
Information on Residents Who Are Registered Sex Offenders or Paroled
for Other Crimes." The draft report has been reviewed by various
components of the Department of Justice (Department), including the
Federal Bureau of Investigation (FBI) and its Criminal Justice
Information Services (CJIS) Division. This letter serves as the formal
comments of the Department, and it is requested that this letter be
included by the GAO in its final report.
The Department set out its comments in two sections. The first section
addresses the recommendation relating to the National Sex Offender
Registry (NSOR). The second section discusses the treatment of issues
of sex offender recidivism and potential danger.
Support for the Recommendation and the Completeness of Information
About the NSOR:
The draft GAO report includes a two part recommendation that "the
Attorney General direct the FBI to take the following two actions: (1)
assess the completeness of the NSOR and (2) evaluate options for making
it a more comprehensive national database of registered sex offenders."
[Numbering added for clarification.]
We believe the recommendation is unnecessary. Had the GAO conducted a
comprehensive review of the NSOR program it most likely would had
discovered that the FBI already performs assessments and explores
options to improve the NSOR.
The CJIS Division regularly assesses the competencies of NSOR and
suggests improvements for its operations that would increase the
registry's value to the end users. For example, during fiscal year
2005, CJIS assessed the states' level of participation in the NSOR and
requested specific information as to what assistance was needed to
improve their level of participation. While the majority of the states
responded to the request for information, a side-by-side comparison of
record counts (state registries against the NSOR, the methodology of
the GAO) may not accurately identify the level of participation. For
example, many states chose not to include all of their records in the
NSOR, such as those regarding incarcerated offenders and those included
in the NSOR by new state of registry, stating they would be of no value
at the national level. As such, when these states responded to NSOR
they included only those released and registered. Consequently, it is
understandable that a discrepancy exists between the states' numbers
and those in NSOR. Further, 11 states indicated that NSOR's database
requirements limited the states' ability to include all of their sex
offenders in the NSOR. CJIS has been advised by these states that they
need additional funding for training and personnel before they can
improve their level of participation.
In addition to the fiscal 2005 audit, the CJIS Division conducts
triennial audits of the states' participation in the NSOR. These audits
include evaluations of the accuracy, completeness, and timeliness of
the information in the NSOR.
Regarding the second part of the recommendation, CJIS already evaluates
options for making NSOR a more comprehensive national database. The
CJIS Division operates under a shared management concept and an
Advisory Policy Board (APB) that is formed under the Federal Advisory
Committee Act. The CJIS APB makes recommendations regarding general
policy to the FBI Director with respect to CJIS philosophy, concept,
and operational principles. Further, the CJIS APB has created an ad hoc
task force to address the states' concerns with the NSOR. As such, the
CJIS APB already provides a forum to discuss and develop any changes to
the NSOR and all 50 states have representation in this APB process.
The GAO may wish to undertake additional information gathering and
analyses of the entire NSOR program. The GAO draft report reaches
conclusions and makes findings that reflect an imperfect understanding
of the NSOR program. This may be the case because the GAO based its
findings on information that could have been far more complete. The GAO
obtained information from select state governments and from the CJIS
Division. There is nothing in the report to suggest that the GAO
collected and evaluated additional information. While the Department
cannot be sure what information the states provided, the Department
knows that the CJIS Division supplied the GAO with legislative
background, database records from the NSOR, and information regarding
technical functionality of the data, and nothing more. This is all the
GAO requested. The GAO did not ask for information about the entire
NSOR program. The Department believes the GAO failed to collect enough
data to allow it to prepare a thorough analysis of the NSOR program
and, therefore, an accurate report.
For example, the GAO proceeded without asking for information about the
relationship between the CJIS Division and the state sex offender
registries. This may explain why the draft is silent about the training
and technical assistance that the FBI provides to the states for the
purpose of helping them include their information in the NSOR. The
absence of any discussion about the assistance provided by the
Department suggests that the Department has failed to provide such
assistance. In fact, such assistance is provided. Moreover, as a result
of working with the states to facilitate their data reporting, the
Department has developed a wealth of information about NSOR. The
Department would have given such information to the GAO had it asked.
Sex Offenders, Recidivism, and Potential Danger:
The report acknowledges an inability to obtain any definite information
about the likelihood that registered sex offenders or other convicts
will engage in abuse of other residents in long-term care facilities,
because the available information about incidents of abuse does not
show whether the perpetrators have prior criminal convictions. See
"Highlights" summary; pp. 5, 11, 17. Nevertheless, the discussion and
conclusions in the report seem to discount on inferential grounds any
risk such offenders may pose to other residents. The report also
attempts to tie in its findings and recommendations concerning the NSOR
to the original subject of the report by stating that "improvements in
the comprehensiveness of the NSOR can enhance the ability of local law
enforcement agencies to identify offenders and notify the community,
including long-term care facilities, where appropriate." Page 28.
Neither conclusion is warranted by the information in the report.
Regarding the suggested low-risk status of convicted sex offenders, the
report relies in part on empirical study which it sees as suggesting
that convicted sex offenders "typically" do not commit more sex
offenses.
By way of illustration, a study is cited in which it was estimated that
"about 14 percent [of sex offenders] had a new sex offense charge or
conviction within 5 years of their release from prison." Page 10.
Whether a 14 percent re-offense rate could properly be regarded as a
small concern in relation to offenses as serious as sexual assaults is
certainly a debatable matter and, in any event, the information
provided by studies of this type is limited by the duration of the
follow-up period for which recidivism is reckoned - in this case, 5
years. For example, assume for the sake of discussion that a sex
offender lives on average about 35 years following his release from
prison. That would be 7 times as long as the 5 year follow-up period
considered in the study. Multiplying the study's recidivism figure of
14 percent over a 5-year period by 7 would then yield a lifetime
recidivism rate for sex offenders of virtually 100 percent (7 times 14
percent equals 98 percent). Such an inference would, of course, be
invalid because (among other reasons) the likelihood of sex offenders
committing more sex offenses later in their lives may not be the same
as their likelihood of doing so within a few years of their release
from imprisonment. But the example illustrates the hazards of making
inferences about the overall risk of recidivism based on recidivism
figures reckoned for relatively short periods. In inferring from the
cited data that sex offenders "typically" do not reoffend, the report
implicitly makes a contrary assumption - that a sex offender who does
not commit more sex offenses within a few years of release probably
will never do so. The report does not substantiate this assumption.
A second limitation of the cited data is that, as the report itself
notes, "research also indicates that sex offenses are underreported."
Page 10. Reliance on re-arrest figures shows only the number of cases
in which the offenses committed by sex offenders are reported or
otherwise detected by the authorities, and the case is successfully
investigated, resulting in the identification of the offender and his
being charged with the crime. Researchers have attempted to go beyond
this type of incomplete information through such methodologies as self-
reports by sex offenders under assurances of confidentiality, and
comparison of reported crime figures with data from victimization
surveys. Studies of this type indicate that a large proportion of sex
offenses never come to light, or do not result in the arrest of the
offender. There is a comparable problem in the draft report's inference
of a relatively low recidivism rate for sex offenders without any
serious effort to determine how much of their actual recidivism is not
reflected in re-arrest figures and the like.
The report also downplays the risk convicted offenders may pose to
other residents of long-term care facilities by noting that such
offenders may be incapable of committing crimes because of physical
infirmity or impairment. Pages 17-18, 27. This notion may be undercut
to some extent by the report's observation that registered sex
offenders identified as living in nursing homes "were considerably
younger than the general nursing home population, with 57 percent under
age 65 compared to about 10 percent of all nursing home residents."
Pages 4-5; but cf. p. 13 (discussing possible reason). In any event, in
assessing the risk of victimization, the condition of potential victims
- not just the condition of potential offenders - needs to be taken
into account. The resident population in long-term care facilities must
include many individuals who are especially vulnerable to
victimization, and who may be attractive targets for sexually violent
criminals present in such facilities, because of mental and/or physical
frailty or impairment. Hence, any reduced risk resulting from infirmity
of potential offenders must be balanced against any increased risk
resulting from infirmity of potential victims.
A final point made by the report on this question is that the facility
administrators who were interviewed more frequently expressed concern
about residents with presently observable cognitive impairments or
mental illness (such as dementia), as opposed to residents with past
criminal convictions. But this information as well would not support
reliable inferences about the actual risk posed by residents with
criminal histories. One reason such residents may not rank high among
administrators' concerns is that the administrators do not know that
they have such residents. As the report recounts, facility
administrators may not have this information because the state in which
the facility is located does not give notice concerning registered sex
offenders to long-term care facilities, or because the state notifies
such facilities only concerning a subclass of sex offenders, or because
the sex offenders in such facilities are not registered since their
convictions occurred prior to the states' establishment of sex offender
registration programs. Pages 2, 6-7, 13, 19-22. Also, even if there is
awareness of the presence of such offenders in a facility, an
administrator may be unable to judge to what extent the conviction
entails a present risk to others, and it would be understandable if
such residents were accordingly viewed as a lesser concern than
residents with manifest current conditions that dispose them to violent
behavior. But neither of these reasons would imply anything about the
actual degree of danger to other residents posed by the presence of
such offenders in long-term care facilities, or that they are probably
not enough of a danger to worry about much, as the report seems to
suggest. See page 27. The report turned up no information sufficient to
support policy conclusions on this issue, and it would be more
appropriate to acknowledge this point straightforwardly.
Finally, there is the report's assertion that "[c]ontinued improvements
in the comprehensiveness of the NSOR can enhance the ability of local
law enforcement agencies to identify offenders and notify the
community, including long-term care facilities, where appropriate."
Without questioning the importance of ensuring that the information in
NSOR is as comprehensive as possible, it is difficult to see how that
could have the particular significance asserted in this statement. If a
sex offender residing in a long-terns care facility registers as
required with the state in which the facility is located, then local
law enforcement agencies (or other agencies responsible for sex
offender notification) have access to that information through the
state system, and it makes no difference for this purpose whether the
information is also in NSOR. The other possibility is that a sex
offender in such a facility will fail to register his current address
with the state, in which case NSOR cannot have the information either,
because the information in NSOR comes from the state systems. So the
report should either explain the logical justification for this
statement, or delete it.
Thank you for the opportunity to comment on your report.
Sincerely yours,
Signed By:
Paul R. Corts:
Assistant Attorney General for Administration:
[End of section]
Appendix IV: Comments from the Department of Health and Human Services:
Department Of Health & Human Services:
Office of Inspector General:
Washington, D.C. 20201:
Ms. Kathryn G. Allen:
Director:
Health Care:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Ms. Allen:
Enclosed are the Department's comments on the U.S. Government
Accountability Office's (GAO) draft report entitled, "Long-Term Care
Facilities: Information on Residents Who Arc Registered Sex Offenders
or Paroled for Other Crimes" (GAO-06-326). These comments represent the
tentative position of the Department and are subject to reevaluation
when the final version of this report is received.
The Department provided several technical comments directly to your
staff.
The Department appreciates the opportunity to comment on this draft
report before its publication.
Sincerely,
Signed By:
Daniel R. Levinson:
Inspector General:
Enclosure:
Comments Of The Department Of Health And Human Services On The U.S.
Government Accountability Office's Draft Report Entitled. "Long-Term
Care Facilities Information On Residents Who Are Registered Sex
Offenders Or Paroled For Other Crimes" (GAO-06-326):
The Department of Health and Human Services (HHS) appreciates the
opportunity to comment on the draft report. The comments that follow
represent HHS's responses to the draft report. We note that the draft
GAO Report contains no conclusions or recommendations concerning the
Health Insurance Portability and Accountability Act of 1996 (HlPAA)
Privacy Rule.
HHS appreciates GAO's bringing to our attention the uncertainty of some
long-term care facility officials with respect to the application of
the HIPAA Privacy Rule in the uncommon circumstances outlined in the
proposed Report. We also appreciate GAO's suggestion that future
guidance may be needed should this issue gain in prominence.
We believe the Report will contribute to resolving much of the
uncertainty based on the discussion on page 25 of the relevant Privacy
Rule provisions, including that, even to the extent conviction
information is maintained by the long-term care facility as protected
health information, it could still be used within the facility or
disclosed to others for specific purposes permitted by the HIPAA
Privacy Rule. This includes activities necessary for the safe operation
of the facility or disclosures that are required by other law, such as
certain of the State laws referenced elsewhere in the draft Report.
However, in the Results in Brief section of the proposed Report, on
page 6, the statement that some long-term care facility managers would
notify facility staff of a resident's prior conviction "[d]espite
concerns that they may violate the HIPAA Privacy Rule" may wrongfully
suggest that these disclosures would, in all cases, violate the HIPAA
Privacy Rule. Such a misinterpretation could be avoided by including in
the sentence that follows a reference to the explanation of the
application of the HIPAA Privacy Rule that appears later on page 25.
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Kathryn G. Allen, (202) 512-7118 or allenk@gao.gov:
Acknowledgments:
In addition to the contact named above, Susan T. Anthony, Assistant
Director; George Bogart; Katherine Crumley; Michaela M. Monaghan;
Elizabeth T. Morrison; Sari B. Shuman; and Kara Sokol made key
contributions to this report.
(290416):
[End of section]
FOOTNOTES:
[1] For this report, we refer to nursing homes and ICFs-MR together as
long-term care facilities.
[2] For this report, we refer to registered sex offenders and other
offenders on parole for non-sex offenses as offenders.
[3] California state officials did not provide us with the state's sex
offender registry in view of their concerns with state privacy laws.
[4] The NNHS is conducted by the Centers for Disease Control and
Prevention's National Center for Health Statistics.
[5] Of the 1.5 million individuals living in these long-term care
facilities in 2005, about 100,000 lived in ICFs-MR.
[6] Adaptive skills include communication, self-care, home living, and
social skills. The criteria specify that these conditions need to have
been identified at or before the age of 18.
[7] CMS sets conditions of participation for facilities that receive
federal funding. Part of the conditions of participation requires that
residents have certain rights to personal privacy and the
confidentiality of personal records.
[8] 45 C.F.R. pts. 160 and 164 (2005).
[9] Rape is defined as forced sexual intercourse with a male or female
victim. Sexual assault is defined as a variety of victimizations that
involve unwanted sexual contact. Incest is defined as nonforcible
sexual intercourse between persons who are related to each other to a
degree where marriage is prohibited by law. Department of Justice,
Bureau of Justice Statistics, An Analysis of Data on Rape and Sexual
Assault: Sex Offenses and Offenders (Washington, D.C.: February 1997).
[10] For this report, we refer to the Jacob Wetterling Crimes Against
Children and Sex Offender Registration Program as the Wetterling
Program.
[11] Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-
322, § 170101, 108 Stat. 1796, 2038 (1994) (codified at 42 U.S.C. §
14071).
[12] Criminal offenses against minors include criminal sexual conduct
toward a minor and solicitation of a minor to engage in sexual conduct.
"Sexually violent offenses" include offenses that consist of aggravated
sexual abuse or sexual abuse. A "sexually violent predator" is defined
as a person who has been convicted of a sexually violent offense and
who suffers from a mental abnormality or personality disorder that
makes the person likely to engage in predatory sexually violent
offenses. 42 U.S.C. § 14071(a)(3).
[13] Under the Byrne Formula Grants Program, the DOJ's Bureau of
Justice Assistance provides federal financial assistance to grantees
for the purpose of enforcing state and local laws that establish
offenses similar to offenses established under the Controlled
Substances Act and to improve the functioning of the criminal justice
system with emphasis on violent crime and serious offenders. In fiscal
year 2004, all 50 states, the District of Columbia, and the U.S.
territories received financial assistance through Byrne Grants.
[14] Pub. L. No. 104-145, § 2, 110 stat. 1345 (1996) (codified at 42
U.S.C. § 14071).
[15] For this report, we refer to the Pam Lychner Sexual Offender
Tracking and Identification Act of 1996 as the Lychner Act.
[16] Pub. L. No. 104-236, § 2, 110 Stat. 3093 (1996) (codified at 42
U.S.C. § 14072). The NSOR is a nationwide system that links the states'
sex offender registration and notification programs. The system uses a
person's FBI number to connect the registration information in the
National Criminal Information Center with the registrant's criminal
history information that includes his/her fingerprints. According to
the DOJ the NSOR should be used to enhance a state's ability to locate
offenders in its jurisdiction who may be violating the law by not
registering.
[17] States could apply for a 2-year extension of the statutory
deadline from the DOJ if they had made good faith efforts to comply but
were unable to meet the original deadline for implementing a state sex
offender registry.
[18] Scott Matson and Roxanne Lieb, Sex Offender Registration: A Review
of State Laws (Olympia, Wash.: Washington State Institute for Public
Policy, 1996). Department of Justice, Bureau of Justice Statistics,
Summary of State Sex Offender Registries, 2001 (Washington, D.C.:
2002).
[19] An FBI official explained that the submission of one record
demonstrates that the state has completed the reprogramming of its
database to conform to NSOR standards.
[20] Under the Lychner Act, NSOR information must also be disclosed for
employment background checks. To ensure that information released in
background checks is accurate, a person's identification is verified
using fingerprints. The FBI number provides the necessary link between
the sex offender registry record and an offender's fingerprint records
to technically achieve the inclusion of an offender's NSOR records in
employment background checks.
[21] States also have the option of searching for an offender's FBI
number by conducting inquiries of the FBI's Fingerprint Identification
Record System using name and date of birth or fingerprints.
[22] According to NSOR data documentation provided by the FBI certain
pieces of information are mandatory for state registry records to be
accepted into the NSOR, including: offender's name; physical
characteristics, including gender, height, weight, eye, and hair color;
race; date of birth; registration beginning and ending dates; FBI
number; and conviction information. The NSOR also includes other
information, such as vehicle license plate numbers and home address,
but will accept records even if this information is not provided.
[23] In addition to annual address verification, states are required to
validate information in the NSOR on an annual basis to ensure the
accuracy and completeness of the information.
[24] 42 C.F.R. §§ 483.13(c)(2), 483.420(d)(2).
[25] The federal law requires the registration of sex offenders
convicted of criminal offenses against minors or of sexually violent
offenses or those designated as sexually violent predators.
[26] 730 ILCS Stat. Ann. § 152/120 (West 2005); Utah Code Ann. § 77-27-
21.5 (2003).
[27] Cal. Penal Code § 290.45 (Dearing 2005); Fla. Stat. Ann. § 944.606
(West 2005); Minn. Stat. Ann. § 244.052 (West 2003); N.J. Stat. Ann. §
2C: 7-8 (West 2005); Ohio Rev. Code Ann. §§ 2950.081, 2950.11 (Anderson
2005); Okla. Stat. Ann. Tit. 57, § 584 (West 2005-2006).
[28] 2005 Cal. Adv. Legis. Serv. c. 466 (Dearing); 2005 Ill. Legis.
Serv. 94-163 (West); 2005 Minn. Laws c. 243.166; 2005 Okla. Sess. Laws
Serv. c. 465 (West).
[29] Requirements in state community notification laws specifying that
nursing homes and ICFs-MR be notified about registered sex offenders
who were residents appear to be a recent trend. For example, a 2001
review of state community notification laws by the Bureau of Justice
Statistics found that states generally did not notify nursing homes or
ICFs-MR when offenders entered the facilities.
[30] Emergency rules implementing this law require licensed long-term
care facilities, such as nursing homes and ICFs-MR, to check the
background of potential residents through the state sex offender
database. 77 Ill. Reg. § 300.625 (as added for emergency rules
published on Sept. 2, 2005). These rules expired on December 7, 2005,
and have not yet been replaced by permanent rules.
[31] The Prosecutorial Remedies and Other Tools to End the Exploitation
of Children Today Act of 2003, Pub. L. No. 108-21 § 604, 117 Stat. 650,
688.
[32] DOJ has published proposed guidelines in the Federal Register with
respect to state Internet sites for sex offender information at 70 Fed.
Reg. 12721 (2005).
[33] See [Hyperlink, http://www.nsopr.gov/].
[34] 2005 Ill. Legis. Serv. 94-163 (West); 2005 Minn. Laws c. 243.166;
2005 Okla. Sess. Laws Serv. c. 465 (West).
[35] 77 Ill. Reg. §§ 300.615, 300.625 (as added by emergency rules
published Sept. 2, 2005). These rules expired on December 7, 2005, and
have not yet been replaced by permanent rules.
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