I have litigated several cases against long term facilities where their employees and/or residents have sexually abused my clients. So how does this happen? First, not all facilities perform the background checks they are required to do. Under New York State Law Section 845b of the Executive Code and 2899 of the New York Public Health Law requires that background checks be performed for prospective employees for any residential health care facilities licensed under New York State Public Health Law, any certified home health care agencies, any licensed care service agencies, or long term home health care programs. Temporary employment is permitted while this background check is taking place as long as the employee works with consumers under direct and “appropriate” supervision. Only certain convictions are disqualifying offenses, such as: any felony sex offense, any class A felony, or conviction of a violent felony or any other class B, C , D, or E felony within ten (10) years. In other words someone can have a felony conviction that is more than ten (10) years old and still be eligible to work with the most vulnerable in our society.
Recently, it has been reported that a convicted rapist was charged with sexually abusing a 91 year old woman who was a resident of the the Loudonville Home for Adults located on Albany Shaker Road in Loudonville, New York, where he was working as a maintenance employee. Richard Ragone, 64, was a level three (3) sex offender, who previously spent sixteen (16) years in prison for the 1983 rape and sodomy of a woman in Saratoga County. Overall, he had four (4) prior felony convictions and five (5) misdemeanor convictions. I could not find any reports indicating whether the home had done a background check on this individual. See http://www.timesunion.com/local/article/Cops-Elderly-woman-abused-4162419.php; http://capitalregion.ynn.com/content/top_stories/626904/level-three-sex-offender-accused-of-sexually-abusing-91-year-old-woman-at-nursing-home/
I did find that as a result of this case, legislation has been proposed that requires elder care facilities to check sexual offender registries. New York State Assemblyman James Tedisco and New York State Senator Kathy Marchione proposed legislation that would require elder care facilities including nursing homes to check the sex offender registry when hiring someone. As a former prosecutor, I can attest to the fact that sometimes very old convictions such as the one Ragone conviction from 1983, will not appear on a basic criminal background check; hence, the need to check the registry. Let’s hope this legislation passes.