Nursing Homes Are Discriminating Against People Based on Their Decades-Old Convictions

After decades of mass arrests and harsh sentences – especially for Black and Latino men –New York’s prison population is aging. Many older or disabled incarcerated New Yorkers are now approaching their release dates and should be returning to their communities. But nursing homes across the state are discriminating against them and preventing them from being released based solely on their decades-old convictions.

The toll of imprisonment exacerbates the natural decline of the human body, meaning that by the time many incarcerated elders should be exiting prison, they need significant medical assistance. The best places for many of these individuals to live in the community are skilled nursing homes.

However, when nursing homes receive requests for admission from incarcerated people – most of whom are elders who have significant physical limitations or disabilities – they almost always deny them admission without individual assessment because of their criminal legal system involvement. This occurs even though research shows, and common sense dictates, that older people and people with significant disabilities pose little risk of danger to society.

Because New York prison officials will not release people who need nursing home care unless a nursing home accepts them, this mass discrimination leaves people who have been granted parole with no place to go. They are forced to stay in prison and some die before being released. The NYCLU and the Parole Preparation Project have been working to put an end to this discrimination so that older incarcerated individuals and incarcerated individuals with disabilities are free to spend the rest of their lives outside of prison walls.

The Tolls of Aging in Prison

Decades of advocacy by criminal legal system reform advocates have, thankfully, helped reduce New York’s prison population. But the proportion of incarcerated individuals aged 50 and older has risen dramatically. This is largely driven by long sentences, particularly those imposed under policies like the Rockefeller Drug Laws, which have had a disparate impact on Black and Brown communities.

For those nearing release who have served long sentences, aging in prison is inhumane. Incarcerated people are often subject to violence from correctional officers. Prison food is barely edible, cheap, often stale, heavily processed and high in sodium, leading to both acute illness and chronic disease. Prisons are often built near environmentally hazardous sites or contain old pipes that produce drinking water with unacceptable levels of bacteria. And the health care in prison is vastly inadequate. Sick people face rampant medical neglect, and serious illnesses are often left untreated and rapidly worsen. Unsurprisingly, research has shown that people in prison are much sicker and have a much higher rate of chronic medical conditions than the general population.

Discrimination by Nursing Homes

In a case we litigated on behalf of a 67-year-old incarcerated person suffering from end stage renal failure, a New York state prison official testified under oath that they had reached out to hundreds of nursing homes across the state who declined to admit our client because of their blanket bans on people with criminal convictions.

Similarly, we worked with another client who was granted parole but could not be released because he faced widespread discrimination by hundreds of nursing homes based on his criminal legal system involvement. This was true even though he has multiple sclerosis and is largely immobile.

Neither of these New Yorkers could pose threats to the nursing home staff or residents given their medical conditions. However, hundreds of nursing homes denied them care based on stereotypes without individually reviewing their circumstances.

Beyond being unethical, these nursing homes’ policies of denying admission to people with past convictions is illegal. It violates federal, state, and local fair housing laws because conditioning someone’s admission to a nursing home based on their conviction status has a disparate impact on Black and Latino people, making it racial discrimination. Specifically, NYC’s Fair Chance for Housing Law prohibits housing providers from considering most parts of a criminal record during the housing application process.

What Nursing Homes Must Do to Comply with the Law

It is time for nursing homes to stop ignoring the law. Given their advanced age and medical condition, people who need nursing home care largely pose no risk of harm to residents or staff. Further, by granting parole, the New York State Board of Parole has determined, after a rigorous review process, that not only have these individuals been sufficiently punished, they are also not a public safety risk.

The NYCLU recently sent a letter to state nursing home regulators at the New York State Department of Health, explaining the legal and ethical obligations of nursing homes across the state to treat everyone who applies to live in their facilities fairly and without prejudice and encouraging the DOH to use its enforcement and advisory powers to address this discrimination.

Nursing homes should not deny admission to people based on their conviction histories or because they are or have been incarcerated. They should instead accept applications from incarcerated people and evaluate each applicant just as they would any other, based on the same standards and criteria.

In prisons across our state, New Yorkers are effectively forced to stay locked up because nursing homes are clearly discriminating against them. That’s unjust, unethical, and against the law.

If you believe you have been discriminated against by a nursing home, you can file a report with New York City, New York State, or the State Department of Health.