November 10, 2011

After his admission to the nursing facility, it is discovered that Mr. C ("Jimmy") had been incarcerated for a number of assaults, has a history of substance abuse, and is a registered sex-offender. He is 74 years old, exhibits signs of moderate dementia, and is limited to a wheelchair following a stroke. He is impulsive and prone to angry outbursts. His judgment is poor. He is able to move around via his manual wheelchair and has fair use of both arms.

What do you, as facility administrator or medical director, do now?

Before you answer or say that this case has little relevance to your facility, consider this: The population is aging and so are the inmates of the criminal justice system. The trend is toward about one-third of U.S. inmates being age 55 years and older by 2030. As such, a growing number of them are requiring costly long-term care within their prisons.

Because of government budget cuts, decreased tax revenues, and a bad economy, there is a strong incentive to move these "expensive" – meaning sick and elderly – inmates into community settings. Thiseliminates substantial costs for struggling correctional departments and shiftsthose costs to the broader base of federal and state governments via Medicaid. On paper, it all sounds pretty good, unless you are the receiving facility and suddenly need to care for individuals who may still present substantial risk to your other residents and facility staff.

In addition to the fiscal pressure for this shift, prisoner advocates make a humanitarian argument. As inmates age, they may be less able to protect themselves in a correctional environment from other inmates. In an environment segregated by race and gang affiliation, and where the consequences of not following both institutional and informal rules of the prison subculture can be dire, people with the cognitive decline often associated with aging may be at high risk of harm. Finally, when safety concerns may preclude the possession of a walker or other therapeutic item that might be used as a weapon, prison-based long-term care may be limited. Community care can seem a positive option for inmates who no longer fit into the correctional setting.

Even without financial and humanitarian concerns, another reality is that after years of inmates serving long sentences as a result of "tough on crime" policies, more elderly and medically impaired men and women are being released after finishing lengthy prison terms.

An irony here is that while the medically impaired prisoner may have been vulnerable in the prison medical setting, his or her status may be just the opposite in the community. In a long-term care facility outside prison walls, the person suddenly acquires a significant set of patient rights and finds ready access to items that would have been viewed as potential weapons, contraband, or tools of addiction (drugs, syringes, and so forth).

Furthermore, former inmates may retain the survival skills of prison that can involve manipulation, threats, and exploitation of both staff and peers.

When the Answer Isn’t ‘No’

Thus the long-term care community faces the need to adapt to residents who despite their own physical and cognitive limitations may present a substantial risk to our facilities and residents – the Mr. Cs of the world. Of course, we would like to keep these individuals out of our facilities, but as they increasingly do get in, we need to reexamine our admission policies and care-planning strategies and (through state and national organizations) advocate regulatory changes that reflect a changing balance between patient safety and patient rights when Mr. C arrives.

Potential solutions may vary. Some facilities may try to deny any admission to anyone with a known criminal or correctional history. Others may create specific areas within their nursing homes for these individuals. Some may try to integrate these residents into the general population and manage the risks. Finally, some facilities will undoubtedly simply fail to address the problem and hope for the best.

Each of these approaches is problematic. In attempting to deny admissions of criminals and ex-convicts, a nursing facility is likely occasionally to find that despite its best efforts, the resident admitted last month and now causing a problem "forgot" to mention that he had been incarcerated. The facility that attempts to segregate this population could well receive a complaint that it is violating resident rights by segregating people based on potential rather than actual behavior. Integration and risk management may expose vulnerable, dependent, and elderly adults to exploitation or abuse should staff let down their guard. And the facility that hopes for the best will find itself deemed negligent for not addressing "predictable" risks.

The question returns, "What do we do?"

Regulatory agencies and the courts aren’t yet of much help as they are only now starting to sort out complaints and incidents in this area. Of course, no facility wants to be a test case. Current law is strongly weighted in favor of the patient rights of the typical long-term resident (that is, older, generally sociable elders) without apparent consideration of potentially antisocial behavior by some less typical residents today.

While this is the case, there does appear to be some latitude if nursing homes focus on resident safety. Regulators may be more sympathetic to a facility’s need to limit resident C’s rights if it’s done in the context of resident A’s right to safety from harm.

If a resident arrives with a significant criminal history, whether on parole or probation or neither, a risk assessment should be conducted. Unlike a blunt note to the effect of, "We put all the criminals in the B wing," examination of the known behaviors of the resident and a process of recording these and relating them to realistic risks to others may better pass muster by a surveyor or court. From there on, heightened awareness and monitoring for signs that the resident may in fact be regressing to past behaviors may allow staff to minimize risk quickly.

Public Enemy Still?

That brings us back to the case of Jimmy C, the ex-inmate who forgot to mention his convictions, substance abuse, and sex offenses at admission – and which, evidently, everyone at the facility forgot to ask about. If his status had been known prior to admission, he might have been checked against the various sex-offender registries (try the U.S. Department of Justice’s at www.nsopw.gov/Core/Portal.aspx or consult your state registry), and if he were on parole or probation, contact should have been made with his supervisor to obtain information about the resident and to see what conditions on his freedom were in effect. If the resident were under such supervision, the parole or probation officer could be a resource for encouraging acceptable behavior by the resident.

If the resident has already been admitted and is not under supervision, a different series of actions are called for.

Since Mr. C is noted as having committed assaults, speaking with him and any available contact about the nature of the offenses would be important. Questions as simple as, "What did you do?" may produce significant information. Other appropriate questions are, "Were these assaults recent?" "Were they sexual in nature?" "Was a weapon used?" "Were they ‘pled down’ from even more serious charges, such as attempted murder?" "Was Mr. C under the influence of drugs or alcohol?" "Is Mr. C still capable of committing the same sort of crime, given his medical status?" "If not, is his physical condition likely to improve with nursing home care so that he may be dangerous again?"

Similar questions should be asked regarding sex offenses and the possible presence of mental illness.

Finally, based on our assessment and observations of Mr. C’s current behavior, we may then use his care plan to address reasonable risks. If he has a history of aggression and is behaving aggressively, then we may place him on a unit suited to this behavior (assuming one is available). If it appears that medication has a reasonable chance of reducing the risk of aggression, then we have greater support for med use. If he has a history of sex offending and still appears capable of engaging in such behavior, we may heighten monitoring and inform necessary staff of the risk in order to protect our population of dependent and elderly adults. (Be cautious here about allowing private information about Mr. C to enter the rumor mill.)

In all cases, our awareness of past criminal behavior must trigger greater vigilance, and if criminal behavior does occur, reporting it to law enforcement is mandatory. While we might typically report noninjurious resident-resident conflicts to a facility ombudsman or a state department of health, in the case of actual criminal behavior, you must take further action and consider whether the ombudsman is equipped to intervene at all to protect your residents and staff. The offending resident might need to be taken into custody to protect others.

As the long-term care population changes, whether through an increase in people with criminal backgrounds, a shift to younger residents, or simply the turnover of the World War II generation to the boomers, the residents of the future bring with them changes in expectations. We in long-term care will need to adapt. Given the growing and multiple pressures to move individuals out of the correctional system and into long-term care, I advise everyone to expect and prepare for the arrival of Jimmy C. CfA

 

?Board Room? is an occasional series of viewpoints from members of the Caring for the Ages editorial advisory board. Dr. Gibson is the senior clinical psychologist and an attorney working at Edgemoor DP SNF, County of San Diego. He is a member of the California Association of Long-Term Care Medicine Policy and Professional Services Committee, San Diego bioethics committees, and the advisory board for Caring Advocates for end-of-life planning.

<- Back to: Board Room