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SJC limits nursing home ban on sex offenders

Rules state law went too far in Boston case

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By John R. Ellement and Kay Lazar
Globe Staff / August 6, 2011

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A state law that makes it illegal for dangerous sex offenders to live in a nursing home was unconstitutionally used to try to oust a man from a Boston home, the Supreme Judicial Court ruled yesterday.

In a unanimous ruling, the high court said that the rights of the offender, identified only as John Doe, were violated when Boston police invoked the law in 2010 and told the frail 65-year-old he had to leave the nursing home where he was living. The court said the statute overreached in providing no opportunity for the offender to make the case that he could safely stay.

Attorneys familiar with the case said the ruling is narrowly written and technically applies only to John Doe’s situation. But advocates for aging sex offenders in need of long-term care said they hope the court’s criticism of the state law will sway nursing home administrators to let sex offenders into their facilities when the risk they pose is low.

The court previously ruled that it was constitutional for these offenders to lose protections, such as privacy rights, after being classified as a Level 3 offender, those considered most likely to reoffend, by the Sex Offender Registry Board.

But the court said the state law barring Level 3 offenders from nursing homes goes too far under the state’s Declaration of Rights, because it transforms a person’s right to choose where to live into a crime.

“Those who have been released from incarceration . . . are free to live where they choose and to move freely within and without the Commonwealth,’’ the court said in an opinion written by Associate Justice Fernande R.V. Duffly.

“A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our state constitution,’’ the opinion said.

The SJC decision was focused solely on the ban on Level 3 offenders in nursing homes and did not address the potential conflict with municipal ordinances that prohibit sex offenders from living with 1,000 feet of schools.

Ryan M. Schiff, Doe’s attorney, said the ruling technically applies only to Doe. But he said he is hopeful that nursing homes across the state will follow the court’s interpretation of the law. There are no statistics on how many offenders are living in nursing homes in Massachusetts.

Before yesterday’s ruling, Schiff said, many Level 3 offenders had been routinely denied admittance to nursing homes by administrators who cited the law as the reason for their decision.

“This case will apply to a lot more people than just John Doe,’’ said Schiff, an attorney with the state Committee for Public Counsel Services, which provides legal aid to low-income residents. “It means it’s going to be unconstitutional for more than just this one person, but for anybody in similar circumstances to John Doe.’’

Schiff added, “I’m hoping that now people are going to be able to get into these facilities, to get the care they need without fear of being prosecuted under an unconstitutional statute.’’

But Attorney General Martha Coakley, whose office appeared before the SJC as the lawyer for the state, said that the decision is narrowly drawn. She suggested it will have a limited impact.

“We believe the current law banning Level 3 sex offenders from nursing homes can remain an important tool for protecting the homes’ residents, visiting children and other members of the public,’’ Coakley said in the statement.

She noted that because the court said it was applying its thinking only to John Doe’s case, the state “may legitimately prevent offenders who are shown to present a risk of harm to their elderly neighbors from living with this vulnerable population.’’

Nursing home administrators said they hoped the law barring dangerous sex offenders from their facilities would remain intact.

“I would want to be reassured by someone that I would be on firm ground before admitting someone like that, and if the law said I had to, I would go to my attorneys and management company to clarify that this was a proper place for this person,’’ said John Soule, administrator of the West Acres Rehabilitation and Nursing Center, a 138-bed facility in Brockton.

Administrators said regulations give them wide latitude in their admissions, because they are responsible for the safety of a vulnerable population.

“If someone is frail and is in need of total care, they probably wouldn’t be a danger to other residents,’’ said Sister Philip Ann, administrator of Marian Manor, a 295-bed nursing facility in South Boston. “However, we are very careful about who we take in, and we haven’t taken offenders.’’

She said her facility often uses high school volunteers, who could be at risk from a sex offender who preyed on children. John Doe, the plaintiff in the case, had been convicted of sexual offenses involving young boys.

Julia Hurley, a spokeswoman for the state Department of Public Health, which regulates nursing homes, said the agency’s lawyer was still reviewing the court’s decision to see how it might affect regulations.

In the ruling, Duffly wrote that the law banning Level 3 offenders did not take into account the likelihood that, as a convicted pedophile, John Doe is not a threat to the 11 adults in the nursing home where he lived.

She also wrote that some sex offenders could become welcome in their community, as happened with John Doe, whose criminal history was known to the staff and fellow residents.

“Even assuming that some Level 3 sex offenders in long-term care facilities pose a danger to other residents, others - perhaps especially those who have no history of assaults against adult victims - pose no particular danger to the population the policy aims to protect and are fully capable of contributing positively to rest home communities,’’ Duffly wrote.

According to the court, John Doe was convicted of molesting two boys in 1992, was released and sent back to prison for violating parole in 1997, and completed his sentence in 2006. In 2008, a Superior Court judge concluded he was not a sexually dangerous person, a ruling that ended government controls over him, the opinion said.

Doe had been diagnosed with Asperger’s disorder, glaucoma, heart attacks, a seizure disorder, and had poor hygiene and “disorganized communication,’’ according to the court.

He lived in a homeless shelter for one year, but was beaten several times. He was sent to a nursing home after his hospital stay, the opinion said.

As the case made its way through the legal system, Doe’s health deteriorated, and he was transferred out of the nursing home to a hospital. But the justices opted to proceed with the case because “the issues are significant . . . and it is in the public interest to do so,’’ according to their ruling.

John Ellement can be reached at ellement@globe.com; Kay Lazar, at klazar@globe.com.