BILL ANALYSIS
AB 217
Page 1
Date of Hearing: April 26, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 217 (Vargas) - As Amended: March 31, 2005
FOR VOTE ONLY
SUMMARY : Requires specified notification procedures related to
sex offender registrants who are released into a long-term
health care facility. Specifically, this bill :
1)Requires that at least 45 days before a person who is required
to register as a sex offender is released into a long-term
health care facility, the Department of Corrections (CDC), the
Department of Mental Health (DMH), the California Youth
Authority (CYA), or any other official in charge of a place of
confinement shall notify the facility, in writing, that the
sex offender is being released to reside at the facility.
2)Provides that the registered sex offender shall notify the
facility in writing, on the same date the person registers or
re-registers as a sex offender, that he or she is a sex
offender who will be residing at the facility.
3)Requires the registered sex offender to provide the facility
with proof of registration or re-registration.
4)Specifies that "proof of registration or re-registration"
means a photocopy of the actual registration form. Provides
that the law enforcement agency with which the sex offender
registers shall provide that person with proof of his or her
registration free of charge when so requested by the
registrant.
5)States that immediately upon receiving the notices from CDC,
DMH, CYA and the sex offender that a sex offender will be
residing in a long-term health care facility, the facility
shall provide written notice to the following:
AB 217
Page 2
a) All full-time employees; and,
b) Each resident, or the resident's responsible person, if
the resident is unable to read and understand the notice.
EXISTING LAW :
1)Requires persons convicted of specified sex offenses to
register with the appropriate law enforcement agency within
five working days of coming into, or changing, his or her
residence within any city, county, city and county, or campus
in which he or she temporarily resides. [Penal Code Section
290(a)(1)(A).]
2)States that registered sex offenders who are transients must
register, or re-register, within five working days from
release from incarceration, placement, or commitment, or
release on probation. [Penal Code Section 290(a)(1)(C)(i).]
3)Defines "transient" as a person who has no residence. Defines
"residence" as a place where a person is temporarily staying
or living for more than five days, such as a shelter or
structure that can be located by a street address. [Penal
Code Section 290(a)(1)(C)(vii).]
4)Provides that beginning on his or her first birthday following
registration or change of address, the person shall be
required to register annually, within five working days of his
or her birthday. [Penal Code Section 290(a)(1)(D).]
5)Establishes a three-tiered system of identifying specified sex
offenders to the public, via the Internet, and provides
specific addresses for those convicted of offenses deemed most
serious. (Penal Code Section 290.46.)
6)States that use of the information disclosed on the Internet
Web site about sex offenders shall not be used for purposes
relating to any of the following [Penal Code Section
290.46(j)(2)]:
a) Health insurance;
b) Insurance;
c) Loans;
AB 217
Page 3
d) Credit;
e) Employment;
f) Education, scholarships, or fellowships;
g) Housing or accommodations; and,
h) Benefits, privileges, or services provided by any
business establishment.
7)Defines "long-term health care facility" as any skilled
nursing facility, intermediate care facility, intermediate
care facility/developmentally disabled, intermediate care
facility/developmentally disabled habilitative, intermediate
care facility/developmentally disabled - nursing, or
congregate living health facility licensed by the state.
[Health and Safety Code Section 1326.]
8)Further defines "long-term health care facility" as any
facility licensed which maintains and operates 24-hour skilled
nursing services for the care and treatment of chronically ill
or convalescent patients, including mental, emotional, or
behavioral problems, mental retardation or alcoholism; or
provides supportive, restorative and preventive health
services in conjunction with a socially oriented program to
its residents and which maintains and operates 24-hour
services including board, room, personal care and intermittent
nursing care. (22 C.C.R. Section 73061.)
9)States that a long-term health care facility does not include
a general acute care hospital or an acute psychiatric
hospital, except as specified. (Health and Safety Code
Section 1418(c).]
10)Specifies acceptable reasons for eviction of residents in
adult residential facilities, including but not limited to,
"the client has engaged or is engaging in behavior which is a
threat to his or her mental and/or physical health or safety,
or to the health and safety of others in the facility. The
licensee shall set forth in the notice to quit the reasons for
the eviction, with specific facts including the date, place,
witnesses, and circumstances." (22 CCR Section 85068.5.)
AB 217
Page 4
11)States that the Legislature finds and declares that the
transfer trauma which accompanies the abrupt and involuntary
transfer of patients from one nursing home to another should
be avoided when reasonable alternatives exist. (Health and
Safety Code Section 1325.)
12)Provides that at least 30 days prior to the transfer of a
resident from a long-term health care facility, the facility
shall inform the resident or the resident's representative of
alternative facilities that are available and adequate to meet
the resident and family needs. [Health and Safety Section
1336.2(a)(4).]
13)Requires the licensed facility to take reasonable steps to
transfer residents safely and minimize transfer trauma by, at
a minimum, taking specified actions including, but not limited
to, ensuring that a medical assessment is completed, which
shall include a recommendation for the type of facility that
will meet the resident's needs. [Health and Safety Code
Section 1336.2(a)(2).]
14)States that the resident shall have the right to remain in
the facility for up to 60 days after the approved written
notice of the facility's intent to transfer the resident if an
appropriate placement based on the relocation assessment has
not been made. [Health and Safety Code Section 1336.2(a)(h).]
15)States that notwithstanding any other provision of law, a
long-term health care facility shall give written notice to
affected patients at least 30 days prior to any change in the
operation of the facility resulting in the inability of the
facility to care for its patients. Further provides that if
patients' placement problems are encountered which cannot be
satisfactorily resolved within this 30-day period, the
Department of Health Services and the health facility shall
agree on an extension which shall not exceed another 60 days.
Requires the facility to provide an appropriate team of
professional staff to assist patients and families in
obtaining alternative placement. (Health and Safety Code
Section 1336.)
16)Federal law and regulations establish standards and
certification requirements for states and long-term care
facilities housing patients receiving payments through the
AB 217
Page 5
Medicare and Medicaid (Medi-Cal) programs. (42 CFR Section
483.470.)
17)Provides that, with respect to patients in long-term care
facilities receiving Medicare or Medicaid payments, the
facility must permit each resident to remain in the facility,
and not transfer or discharge the resident from the facility,
unless the resident no longer needs the services of the
facility, the resident's needs can no longer be met by the
facility, the health or safety of individuals in the facility
is endangered, the resident refuses to pay, or the facility
ceases to operate. [42 CFR Section 483.12(a).]
18)Requires that, except as otherwise specified, long-term care
facilities receiving funds under Medicare or Medicaid must
provide the resident with a 30-day notice of the proposed
discharge, including the reason for the discharge; the
effective date; the location to which the resident is to be
transferred; a statement of the resident's right to appeal to
the State; and the name, address and telephone number of the
State long-term care ombudsman. For nursing home residents,
the notice must also include the mailing address and telephone
number of the agency responsible for the protection and
advocacy of developmentally disabled individuals established
under the Developmental Disabilities Assistance and Bill of
Rights Act. [42 CFR Section 483.12(a)(5).]
19)Provides that the facility must provide sufficient
preparation and orientation to residents to ensure safe and
orderly transfer or discharge from the facility. [42 CFR
Section 483.12(a)(7).]
20)Provides that medical facilities constructed or modernized
with federal financial assistance shall provide services to
all persons residing in the facility's service area without
discrimination on the basis of any ground unrelated to an
individual's need for the service or the availability of the
needed service in the facility. [42 CFR Section 124.603(a).]
21)States that a medical facility may discharge or transfer a
person to another facility able to provide necessary services
when the appropriate medical personnel determine that
discharge or transfer will not subject the person to a
substantial risk of deterioration in medical condition. [42
CFR Section 124.603(b)(2).]
AB 217
Page 6
22)Provides that a facility shall ensure that admission to, and
services of, the facility are available to specified
beneficiaries of governmental programs including, but not
limited to, Medicare and Medicaid (Medi-Cal) without
discrimination. [42 CFR Section 124.603(c)(2).]
23)Provides that a facility is out of compliance with its
community service assurance if it uses exclusionary admission
policies that have the effect of excluding persons on a ground
other than those permitted in subdivision (a), described in
#20 above. [42 CFR Section 124.603(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Sexually
violent acts upon vulnerable senior citizens and employees in
nursing homes are unconscionable. However, senior citizens,
other residents, and staff living and working in long-term
care facilities are usually unaware when a sex offender is
released into the facility. Residents and employees of
long-term care facilities deserved to be informed of potential
threats to their well-being."
2)Need for This Bill : According to background information
supplied by the author, "A recent report conducted by 'A
Perfect Cause' ( http://www.aperfectcause.org ) found nearly 70
registered sex offenders live in California nursing homes,
without the knowledge of the hard-working employees, nor the
awareness of the vulnerable residents and their families.
Unfortunately, many residents do not have access to the
Internet to research the location of sex offenders and some do
not have families to do the research for them. They are alone
to fend for themselves.
"Nursing homes should be a place where the infirmed receive
excellent treatment and care, without the threat of violence
or abuse. This bill seeks to protect a vulnerable population
of seniors and the employees providing them service."
The author's background further states that "there have been
several tragic cases and recent news reports of abuse in
nursing homes. One case includes a 78-year-old female
AB 217
Page 7
resident who was raped by a 43-year-old double amputee. In
another case, a 73-year-old female resident was raped by an
83-year-old, wheelchair-bound sex offender."
3)Media Reports of Anecdotal Incidents : According to an article
in the Los Angeles Daily News furnished by the author, A
Perfect Cause matched online sex offender profiles against a
database of nursing home addresses, finding 66 sex offenders
living in 57 nursing homes in California. This article noted
that the attacks mentioned in the author's statement occurred
in nursing homes located in states other than California.
However, after researching the issue, the California Association
of Health Facilities (CAHF) reportedly learned from the
Megan's Law Web site that there were 54 registered sex
offenders identified as living in California nursing home
facilities. Of the 54 sex offenders identified by CAHF, seven
were found to be deceased, seven had been discharged, and one
had never been admitted to the facility at which he was
listed. Therefore, by the CAHF numbers, there are 39 (not 66
as asserted by A Perfect Cause) sex offenders identified on
the Megan's Law Web site living in long-term health care
facilities in California. In addition, CAHF reported that
several registered sex offenders were appropriately residing
in locked facilities and the rest had been admitted with
severe health conditions requiring the appropriate skilled
level of care.
According to the Los Angeles Daily News article, "California
officials and a nursing home association have said in the past
that there have been no reports of sexual assaults on
residents by sex offenders living in the state's nursing and
board and care homes. State officials also have said that
they identify sex offenders to nursing home administrators.
But they acknowledged that the information is not always
passed along to those running the facilities, to the
residents, and to their families. No state law requires that
residents of homes be notified if a sexual predator is living
next door."
A CBS-11 story from Texas reported a registered sex offender
living in a Lancaster nursing home next to an elementary
school. The report stated that the sex offender "was sitting
listlessly in a wheelchair" and denied committing sexual
assault on a nine-year-old girl when he was 72 years of age.
AB 217
Page 8
According to the report, nursing home officials agreed that he
was no threat to any person, citing his physical disabilities
and the opinion of his probation officer that the sex offender
poses no threat to anyone due to living next to a school.
According to the CBS-11 report from Texas, "The watchdog group,
A Perfect Cause, advocates even greater reforms. [The
founding President of the watchdog group] said convicted sex
offenders should be kept segregated from vulnerable law
abiding residents. His organization also calls for mandatory
criminal background checks of all nursing home residents and
posted warnings on the front door."
A report by the KCRA Channel 3 in Sacramento poses the question,
"But what can be done? Nursing homes continue to insist they
are caught in the middle. 'We, like anyone else, are
grappling with how to best deal with this new information in a
responsible manner, without violating patient privacy laws,'
said California Association of Health Facilities spokeswoman
Betsy Hite."
Another KCRA 3 report states that A Perfect Cause found five sex
offenders living in skilled nursing homes in Stockton,
Carmichael, Roseville, Grass Valley and Yuba City. In the
same report, the Department of Health Services is quoted as
saying it has no criteria for admitting sex offenders, and
"the Department of Health Services requires skilled nursing
providers to complete an assessment of all residents,
including whether they present a danger to themselves or
others."
A Perfect Cause lists a number of proposed regulatory changes to
address the issue of sex offenders in nursing homes. These
include the posting of notices on all entrances of long-term
care facilities, stating that there is a violent offender on
the premises. Another is the establishment of separate
long-term care facilities for residents who are violent
offenders. A Perfect Cause states, "Do not mix offenders with
non-offenders. Require specialized training and security in
these facilities. Offer higher reimbursement rates to
operators who wish to contract for this business. This is
also an economic benefit for those facilities housing
non-offenders. They will not endure workers compensation
claims from staff offended or affected by offenders as well
the facilities will not be sued for failing to protect
AB 217
Page 9
residents from rapes, sexual and/or physical assaults."
A Perfect Cause also recommends the use of video monitoring to
protect residents, staff and visitors, as a preventive
measure. Another recommendation from A Perfect Cause is "move
your loved one to a facility without violent offenders."
4)Economic Harm to Long-Term Care Facilities : Contrary to the
opinions expressed by A Perfect Cause, the California
Association of Homes and Services for the Aging (CAHSA), an
industry representative for community-based, not-for-profit
providers of affordable housing, residential assisted living
and skilled nursing facilities, opposes this bill because of
its effect on the income and operations of these facilities.
CAHSA asserts that if privately paying residents move due to
the presence of sex offenders, the facility will be deprived
of the private payer's higher fees, negatively affecting the
facility's budget. CAHSA also points out that the information
that a sex offender is coming to the facility will cause
employees and residents to become distraught, and that this
places the facility in an untenable position as Medi-Cal rules
prohibit the involuntary discharge of a resident already
accepted by the facility.
The Legislature has found and declared that the transfer trauma
which accompanies the abrupt and involuntary transfer of
patients from one nursing home to another should be avoided
when reasonable alternatives exist. (Health and Safety Code
Section 1325.) If receipt of the notification required by
this bill is going to cause patients who can afford to do so
to move, the move will cause trauma to both the patient and
his or her family. If the patient cannot afford to move, the
notification is at the very least likely to cause panic, fear,
and other forms of trauma to those residents. Since most of
the sex offenders admitted to long-term care facilities in
fact pose no documented risk to the other residents, this fear
and trauma is unjustified and unnecessary.
5)Are the Notice Requirements of this Bill Workable ? This bill
requires CDC, DMH, CYA and other officials in charge of places
of confinement, to notify long-term health care facilities, in
writing, at least 45 days before a sex offender is being
released to reside at the facility. This bill also requires
the person being released to notify the facility and to
provide a photocopy of his or her registration document.
AB 217
Page 10
Officials in the corrections system may not be able, for various
reasons, to comply with the 45-day written notice requirement.
Some officials attempting to find placement for inmates being
released on probation or parole may do so by telephone rather
than sending numerous letters to potential placement
facilities. Inmates may be released earlier than anticipated,
and the vagaries of the court system may not allow for the
45-day written notification. Is it the intent of this bill to
preclude placement if the written notification is not given at
least 45 days prior to the inmate's release?
It is unclear why the bill requires dual notification of sex
offender status - notification by CDC, DMH, or CYA, or county
jail official, and also notification by the sex offender
himself or herself. This bill provides no penalties for
non-compliance by either any of the agencies or the sex
offender. Does this suggest that this bill contemplates that
once notice is given no sex offenders will be accepted for
residence at the facility?
6)Inclusion of Misdemeanor Offenders : Does this bill expand
current sex offender notification law by requiring persons
convicted of misdemeanor sex offenses to disclose their
status? This bill requires officials in charge of places of
confinement in addition to CDC, DMH, and CYA to provide the
45-day written notification of the release of a sex offender
to a long-term, health care facility. This bill also requires
law enforcement agencies that register persons released on
probation to provide free copies of the registration document.
These provisions suggest that registered sex offenders whose
information is not currently available on the Megan's Law Web
site are nevertheless required to disclose their status to
long-term, health care facilities.
Currently, the Megan's Law Web site provides the public with
specific home addresses for approximately 33,500 registered
sex offenders, and provides area of residence and zip code
only for an additional 30,500. Information on 22,000 other
sex offenders is not included on the Web site under existing
law but is known to law enforcement.
By its terms, this bill applies to all registered sex offenders.
Therefore, under this bill, personal information, including
addresses, on all sex offenders seeking to reside in a
AB 217
Page 11
long-term, health care facility would be disclosed to the
facility, its staff, and its residents even as to those sex
offenders are not included in the publicly available
information on the Megan's Law Web site.
7)Protecting the Public : According to a report by the United
States Department of Justice, Office of Justice Programs,
National Institute of Justice, only one study was found that
empirically examined whether notification protects the public
by reducing recidivism. After studying two groups of sex
offenders (one group of offenders subject to notification and
the other group consisting of offenders incarcerated before
the notification statute was implemented) for 54 months, there
was no statistically significant difference in the arrest
rates for sex offenses between the two groups. The study
found that the overall rates of recidivism at the end of 4.5
years at risk were similar.
The same study suggested that notification makes it difficult
for offenders obtaining and keeping housing and employment.
The study further suggested that notification makes it
difficult for offenders to reintegrate into society,
potentially increasing the risk of re-offending.
The California Coalition on Sexual Offending (CCOSO) in an
article, "Using the Internet to Provide Passive Community
Notification About Registered Sex Offenders", confirms that to
date the Washington State Institute for Public Policy
conducted the only study attempting to ascertain the impact of
notification on recidivism, and states that the study found no
significant differences in recidivism between similar groups
of offenders who were and were not subject to notification.
However, the study found that those offenders who did
recidivate were apprehended more quickly when they were
subject to Internet notification.
The CCOSO report also points out that widespread notification
makes it very difficult for registrants to find employment and
housing. This may drive such offenders "underground", whereby
they lose touch with support systems, supervision, and
treatment programs. The report states "this is a recipe for
re-offense" that makes these offenders more, rather than less,
dangerous.
The CCOSO report also discusses the difficulties in finding
AB 217
Page 12
housing, which causes offenders to seek housing in low-income
neighborhoods where children are more easily victimized than
children in more affluent, better organized neighborhoods.
Additionally, the report states that the majority of child
victims (probably over 90%) are molested by relatives and
family friends. Inasmuch as incest offenders are unlikely to
target strangers, widespread notification causes their victims
embarrassment and thereby re-victimizes them. The CCOSO
report also points out that widespread notification shifts
educational efforts to protect children away from this primary
source of danger and toward the more insignificant problem of
danger from strangers.
The CCOSO report concluded that the only legitimate purpose of
widespread sex offender notification is enhanced community
safety. "The degree to which this purpose can be achieved by
sex offender notification laws must be weighed against
potential social harm such laws may generate." Presently,
there is insufficient data to reach any firm conclusion to the
question as to what extent the damages from widespread
notification outweigh the benefits.
Given the insufficiency of the data on this important question,
is it a good policy to require that all residents and staff of
a long-term, health care facility be notified that a sex
offender resides at the facility? Will such widespread
notification provide nursing home residents with enhanced
protection such that the damages from this notification are
outweighed? Will such notification in itself cause damage,
anxiety, and fear to the very people it seeks to protect - the
elderly and infirm residents, many of whom are bed-ridden and
presumably unable to take aggressive action to protect
themselves?
8)Legislative Counsel Opinion on Megan's Law and Rental Property
Discrimination : According to Legislative Counsel Opinion No.
0501030, "An owner of residential property is prohibited from
using information obtained through the [Megan's Law Web site]
as the basis for refusing to rent to a registered sex
offender, unless it is to protect a person at risk."
The Legislative Counsel opinion further states that "the
'at-risk' argument becomes more difficult for a property owner
to make if the offender's crimes were perpetrated against
children and the property in question houses only adult
AB 217
Page 13
tenants. If there are no persons arguably 'at-risk' of harm
by the sex offender on the property, the property owner would
be unable to use the information obtained from the Web site
for any 'purpose relating to . . . housing or accommodations'
and could not refuse to rent to the offender applicant.
"Offenders identified on the Web site may have committed
offenses ranging from the violent rape of an adult to a
misdemeanor annoying a child, may have one offense or multiple
offenses, and may have been recently convicted or convicted
decades ago. Determining whether there are persons on the
property 'at risk' of victimization by the offender will
depend upon the offender's previous victim or victims, the
type of offense he or she has committed, and the nature of the
tenants in the building where the offender is seeking to
reside."
The Legislative Counsel Opinion also discussed the eviction of
tenants due to discovery of the tenant's sex offender
registrant status through the Internet Web site. The opinion
states "in our opinion, use of the information to evict a sex
offender would be subject to the same 'at-risk' standard as
used in determining whether or not to rent to a sex offender
in the first place. Based upon the offender's crime, previous
victim or victims, and the nature of the tenants presumably at
risk, the property owner must be able to make a reasonable
claim that he or she evicted the tenant to protect someone who
would be placed at risk by the sex offender's continued
presence in the dwelling."
The Legislative Counsel Opinion also discussed whether an
apartment owner or landlord may inform other tenants that a
tenant is a sex offender. Again, the opinion cites the
necessity of making at "at-risk" determination, stating "any
use of the information including giving information to other
tenants is prohibited unless it is to protect a person at
risk. Disclosure for the sake of disclosure, or mere gossip,
would clearly be prohibited. As discussed [above], the
determination of who is 'at risk' depends on the facts of the
case and the same standard would be used in the property
owner's argument that tenants have been notified of a sex
offender's status to protect the tenants from harm because
they are 'at risk' due to the presence of the sex offender.
"Penal Code Section 290.46 imposes various penalties for misuse
AB 217
Page 14
of the information obtained through the Web site. Use of the
information [for purposes relating to housing] could expose a
property owner to liability for actual damages, up to three
times the amount of actual damages, attorney fees, exemplary
damages, or a civil penalty of up to $25,000. [Penal Code
Section 290.46(j)(4)(A.)]
"In summary, it is our opinion that if an owner of residential
property discovers through the Web site that a tenant is a
registered sex offender, the property owner may not, on the
basis of that information, evict the tenant or disclose the
information to other tenants, unless it is to protect persons
at risk."
9)Information Not Obtained from the Megan's Law Web Site : The
Legislative Counsel opinion concluded that if information that
the applicant or tenant is a registered sex offender is not
derived from the Megan's Law Web site, an owner of residential
property is not otherwise restricted from refusing to rent to
the person for that reason. However, the opinion points out
that "courts have historically held that the Unruh Civil
Rights Act (Civil Code Sections 51 and 52) prohibits
discrimination based on classifications that are not
enumerated in the statute, such as unconventional dress,
families with children, homosexuality, and minors. Hessians
Motorcycle Club v. Flanagans (2001) 86 Cal. App. 4th 833, 836.
Subsequent opinions by courts of appeal have elaborated and a
three-step inquiry has developed for use when considering
whether a 'new' classification should be eligible for
protection under the Unruh Act. The three-part test includes
analysis of: (a) the statute's language, (b) the legitimate
business interests of the defendant, and (c) the consequences
of allowing the new discrimination claim."
In applying this three-step analysis in the Hessians Motorcycle
Club case, supra, the court held that a business could have a
policy of excluding from its establishment bike riders who
wear gang insignia or colors. Although the Legislative
Counsel opinion did not raise the issue of the significant
distinction between bike riders and elderly or disabled sex
offender registrants needing skilled nursing care, it is
likely that an appellate court, in considering the issue of
the elderly or disabled sex offender registrants as a
protected class, might reach an entirely different conclusion.
AB 217
Page 15
Certainly the legitimate business interests of the long-term
care facilities in protecting their residents would merit a
different analysis of the issue of admission to the facility
of a sex offender whose offense was against a child when the
residents of the long-term health care facility are certainly
not children. Additionally, the concerns raised by the
California Association of Homes and Services for the Aging
(CAHSA), infra, would be a legitimate business issue; i.e.,
that this bill places long-term, health care facilities in an
untenable financial position and causes these facilities to
face losing their higher paying private pay patients and
jeopardizing their Medi-Cal benefits.
Moreover, the consequences of allowing the new discrimination
claim would be far different when considering bike riders
wearing gang colors than the consideration of elderly and
disabled sex offender registrants in need of the services
provided only by long-term care facilities being forced to be
homeless and deprived of the medical services that they
require. In the case involving the bikers and their gang
colors, the court found that allowing a discrimination claim
of this type would lead to frivolous lawsuits challenging
other neutral business policies.
It would be harder to make a persuasive argument that a lawsuit
by an elderly, ill, or dying registered sex offender made
homeless by the provisions of this bill was frivolous. As
discussed above, the Department of Health Services determined
that there are 39 registered sex offenders living in long-term
health care facilities in California, and confirmed that these
persons are appropriately housed in facilities that can
provide the medical care needed by those individuals.
To the extent that future legislation results in greater numbers
of sex offender registrants becoming homeless, the issue will
almost certainly be litigated. In the case of this bill, the
plaintiffs would likely to be elderly, disabled, sick, and
dying persons, underscoring the important consequences of
allowing a new discrimination claim. The consideration of the
consequences prong of the three-part test would almost
assuredly include the fact that there have been no documented
instances of sexual abuse by registered sex offenders in
long-term, health care facilities in California.
AB 217
Page 16
From a policy viewpoint, it would appear to be preferable to
require a strict determination of whether registered sex
offenders truly places existing residents of long-term care
facilities "at-risk." The likely alternative is that the sex
offender registration and notification statutes become so
burdensome that an appellate court may determine them to be
punitive in nature. Such a determination would bring back to
the forefront the constitutional issues regarding Megan's Law
notification procedures that have, for now, been put to rest
by decisions of the United States Supreme Court. The
determination that the notification statutes are regulatory
rather than punitive in nature led the Court to uphold their
constitutionality.
The "at-risk" analysis discussed in the Legislative Counsel
opinion, if honestly conducted by appropriate personnel at
long-term, health care facilities, would allow the facilities
to deny admission to sex offender registrants who truly pose a
risk to the population served by the facility; e.g., a sex
offender registrant with a recent conviction of sexual attacks
on elderly women. At the same time, a true "at-risk"
assessment would permit the admission of sex offender
registrants who in fact pose no risk, such as persons with
child molestation offenses decades ago. Since the facilities
are already required under existing law to conduct an
assessment of each resident at the time of admission, there
should be little if any need to evict current residents of the
facility who have subsequently been determined to be
registered sex offenders.
10)Is Banishment the Answer ? In a January 31, 2005 open forum
article in the San Francisco Chronicle, a researcher for the
United States Program of Human Rights Watch wrote, "Even the
most dangerous serial offenders will eventually be released
from prison, and they will have to live somewhere. If we are
more concerned about the safety of our communities than we are
about unending punishment, however, we must find a way to deal
with those who return from incarceration and treatment.
Banishment is not the answer. Communities will be safer when
sex offenders are able to re-integrate, receive support for
behavior change, establish new adult relationships and face
effective mechanisms for monitoring and accountability.
Pushing sex offenders to the margins of our society, with
nothing left to lose, only increases the chance of
recidivism."
AB 217
Page 17
This article further notes that "community notification will not
prevent sexual offenses against children that are perpetrated
by family members or acquaintances, which amount to more than
90% of such offenses. Some even claim that registries deter
some victims from reporting sexual assault when the offender
is a family member, and the privacy of the family is at
stake."
11)Additional Requirement Imposed on Sex Offender Registrants :
Under existing law, sex offenders are required to register
within five days of any change in his or her residence
address. The applicable law enforcement agency is required to
report the change of residence to DOJ within three working
days. [Penal Code Section 290(f)(1).] This bill places an
additional burden on the person required to register as a sex
offender by requiring him or her to notify a long-term, health
care facility of his or her status as a sex offender prior to
or at the time of admission and to obtain and provide a
photocopy of the actual registration or re-registration
document.
Inasmuch as Penal Code Section 290.46(j)(2) provides that use of
the information disclosed pursuant to the Megan's Law database
may not be used for any purposes relating to housing [Penal
Code Section 290.46(j)(2)(G)], is placing the burden on the
sex offender registrant of notifying the housing facility of
his or her status an attempt to circumvent the clear
legislative intent expressed in the aforementioned Penal Code
Section? How likely is it that upon receipt by the long-term
health care facility of two notices of a sex offender's
interest in residing there, the facility will admit the sex
offender?
This bill is needed, according to the author's background,
because nursing home residents do not have access to the
Internet to research the location of sex offenders.
Apparently, therefore, the nursing home or long-term care
facility is being substituted for the Megan's Law database as
the source of the information that, but for the lack of
computer access, would have been obtained from the Internet
database. Is this a transparent scheme to avoid the
prohibitions in Penal Code Section 290.46(j) against use of
the Megan's Law database to take any action with respect to
housing?
AB 217
Page 18
Moreover, is a reasonable sex offender registrant likely to be
able to identify which housing facilities are "long-term,
health care facilities" to which he or she is required to
report his or her status as a sex offender registrant? To a
person seeking rental housing, does a long-term, health care
facility differ so significantly from housing for the elderly
and disabled, or from transitional housing complexes, etc., so
that the person would understand that his or her status as a
sex offender registrant must be reported upon application for
admission?
12)Privacy Concerns : The California Hospital Association
states, "Privacy laws prevent facilities from sharing
healthcare information about one resident with another
resident. This information could be critical to the
determination of whether the registered sex offender is a
threat. For example, a registered sex offender who is in a
coma is a very different threat than one who is fully mobile."
13)Arguments in Support :
a) The California Advocates for Nursing Home Reform states,
"Prior notification provides the facility the time to
implement appropriate care plans and supervision of the new
resident and to protect other at risk residents from any
potential abuse."
b) The Congress of California Seniors states, "While the
number of registered sex offenders who reside in long-term
institutions is relatively small, and the industry seems to
have done a good job limiting the potential harm done to
staff and residents, it is important that all those working
or residing in facilities be aware when such offenders
enter a facility."
c) The San Diego County Sheriff's Department states,
"Senior citizens, other residents, and staff living and
working in long-term health care facilities are often
unaware when a sex offender is released into the facility.
Very few residents of the facilities have access to the
Megan's Law database available on the Internet. Residents
and employees of long-term health care facilities deserve
to be informed of potential threats to their well-being."
AB 217
Page 19
14)Arguments in Opposition :
a) The California Association of Homes and Services for the
Aging (CAHSA) states, "CAHSA opposes this bill because it
puts long-term, health care facilities in an untenable
position. Armed with the information that a sex offender
is coming to the facility, what does a distraught
employee/resident do? Since a sex offender released from
prison to a long-term health care facility will be a
Medi-Cal recipient, once accepted by the facility Medi-Cal
rules prohibit the person from being involuntarily
discharged. The facility cannot cancel the admission if
its employees or residents object. Private-pay patients,
who have the resources to move may do so, depriving the
facility of the private payer's higher fees and thereby
effecting the facility's budget by interfering with the mix
of private pay and Medi-Cal patients.
"The 'need' for this bill is questionable since residents or
their representatives can consult the Attorney General's
sex offender Web site to learn if there is a sex offender
living in the facility. It is telling that neither school
districts nor landlords are required to disclose or report
such facts to their students or tenants."
b) The California Public Defenders Association states,
"This bill would result in CDC, DMH, and CYA being unable
to place older and disabled sex offenders in appropriate
nursing homes, assisted living facilities or hospices.
Instead, these departments would be forced to provide
hospitalization at increased costs or open their own
facilities. Currently, most employees in long-term health
care facilities earn substantially less than prison guards.
Enacting this legislation would shift even more of our
scarce resources from education, health care, and services
for average taxpayers to providing unneeded and expensive
incarceration of aged, disabled, or dying sex offenders.
"We are also concerned this bill creates and promotes
'NIMBY-ism'. More affluent and better organized
communities will use the notice to prevent elder and
disabled sex offenders from being placed in their
communities, even though by definition the elder and
disabled sex offenders are unlikely to present a hazard to
AB 217
Page 20
anyone.
"Last, we are concerned that this bill creates and promotes a
climate of hatred and hysteria. The rationale of Megan's
Law notification statutes is to protect the community. The
sub-text of this proposed language is to ostracize a group
of offenders even after they are disabled by age or
physical handicap and/or dying."
c) The California Attorneys for Criminal Justice (CACJ)
states, "This bill certainly will cause persons required to
register under Section 290 to be ostracized at the
long-term, health care facility and the likely outcome is
that they would be refused admittance to the facility.
"[Considered together with AB 1422, these bills presume] that
people who are required to register under 290 are a threat
to the residents of the long-term, health care facility and
therefore are not likely admitted. What you would have
then is a situation where these 290 registrants who
presumably are in need of long-term, health care because of
some mental or physical disorder will be unable to obtain
the care necessary.
"CACJ believes that the current requirements of Megan's Law
and other criminal statutes are more than adequate to
protect the safety of the public and the residents of
long-term health care facilities."
d) The American Civil Liberties Union states, ". . .
Increasing the obligations of mostly older and disabled
individuals who once committed registerable sex offenses to
again report their sex offender status is unnecessarily
duplicative.
"Moreover, long term health care facilities have the right to
discharge or reject someone who actually poses a threat to
other residents. This bill's blanket notification
requirement to all residents at the facility is likely to
result in unjustified fear and chaos."
15)Related Legislation : AB 1422 (Bogh) requires an applicant
for admission to a long-term, health care facility who is a
registered sex offender to notify the facility prior to or at
the time of admission, and allows for denial of admission of
AB 217
Page 21
applicants and eviction of residents, determined after an
assessment to present a risk to the health and safety of the
other residents. AB 1422 is scheduled to be heard by this
Committee today.
REGISTERED SUPPORT / OPPOSITION :
Support
A Perfect Cause
California Advocates for Nursing Home Reform
California National Organization for Women
Congress of California Seniors
Crime Victims United of California
San Diego County Sheriff's Department
Sheriff, San Bernardino County
Opposition
American Civil Liberties Union
California Association of Homes and Services for the Aging
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744