Recent Decision Complicates Consensual Sexual Relations in SNF's

Consensual sexual encounters are normal and expected in everyday life, and so they are commonplace even in long-term care facilities.  Navigating the nuances of nursing home resident sexual encounters is, however, extremely complicated and challenging for nursing home administrators, residents, and family members of residents.  A recent federal court case has further complicated the decision-making and risk assessment. 

The case in question relates to the Neighbors Rehabilitation Center in Byron, Illinois, which had a policy of intervening to stop sexual encounters between residents with dementia only when there were “outward signs” of non-consent.  According to the nursing home, if there was evidence of consent, the institution would generally permit sexual encounters between residents, even if there was some cognitive deficit or decline.  

The Centers for Medicare & Medicaid Services (CMS) determined that the policy was not adequate to protect  residents, noting that the policy left some impaired residents in immediate jeopardy from sexual encounters. The agency fined the facility $83,800, McKnight’s Long-Term Care News  reported.. 

Neighbors appealed the citation, the Immediate Jeopardy categorization and the amount, arguing that residents, even those with cognitive impairments, have the right to have consensual intimate relationships.  The U.S. Court of Appeals for the Seventh Circuit, however, ruled that there was “substantial evidence” to back up CMS, saying the Neighbors policy was “misguided” and left residents at the risk of victimization. This was especially true when the residents had “severe cognitive or other deficits which may have adversely impacted their ability to actively protest or object.”

The court wrote: 

“Certainly, those who reside in long‐term care facilities are entitled to the dignity of maintaining intimate relationships.  It is also true, however, that when those persons are cognitively or physically impaired, care must be taken by a facility to ensure that those intimate relationships are consensual. The record reflects that Neighbors failed to exercise this care.”

The court noted findings that staff, aware of the sexual interactions, did not talk to the residents about their feelings about these "relationships"; did not document the residents' capacity for consent (or lack thereof) or communicate with residents' physicians for medical assessment of how their cognitive deficits impacted that capacity; did not discuss the developments with the residents' responsible parties; and did not record any monitoring of the behaviors or make any care plans to account for them. The court determined that Neighbors' non-intervention policy prevented any real inquiry into consent, except in the extreme situation where a resident was yelling or physically acting out.

In response, Marty Stempniak, staff writer, for McKnight's, penned an article seeking to provide guidance for administrators, entitled, "What nursing homes can learn from a ‘troubling’ court decision on sexual consent." Stempniak writes that "[o]ne longtime industry expert told me that he was deeply “troubled” by the ruling, and especially the fact that it was labeled as 'Immediate Jeopardy' with there being no outward signs of serious injury, harm or impairment. He’s worried that it could have a negative influence on how SNF leaders regulate sexual activity going forward."

“This court decision will have a very chilling effect on nursing homes’ efforts to move to a more enlightened and balanced approach to dealing with intimacy,” said Daniel Reingold, CEO of RiverSpring Health, a Bronx-based provider that established one of the nation’s first sexuality and intimacy policies in a long-term care facility in the 1990s. Reingold believes CMS and the federal court have established “a very difficult standard in the me-too world that we live in.”

“We rely frequently on reactions of residents to determine whether they want or don’t want something. That is a typical standard by nursing staff,” he told me. For instance, if residents are unable to voice displeasure with a meal and a CNA is feeding them something they don’t want. Some may get agitated and push the food away. “That’s telling us, ‘I don’t want this,’ and we make those kinds of decisions every day, in multiple ways to determine the preference or lack of a preference on the part of a resident with dementia.”

Reingold hopes this doesn’t lead to administrators creating blanket declarations that any physical interaction between residents with cognitive impairment must immediately be stopped, regardless of what occurs leading up to the incident. What if they’ve been holding hands for days and showing signs of outward affection beforehand?

“To decide unilaterally and across the board, ‘Break ’em up, they’ve got Alzheimer’s, they’re having sex, that’s a no-go,’ would be a shame,” Reingold said. “We allow people with Alzheimer’s and dementia to make decisions all day long. Do you want the peas or the carrots? Do you want to play bingo or go to the art program? Do you want salt or no salt? And we honor those kinds of things. Just because someone has short-term memory impairment doesn’t mean that they can’t make a decision in the moment. We know that.”

The specific facts of the federal case case involved three residents who were battling some form of dementia or Alzheimer’s.  In one instance, an 80-year-old man suffering from dementia and behavioral disturbances was observed touching the genitals of a 65-year-old man who suffered from Alzheimer’s, dementia and behavioral disturbances. The two lived in separate rooms, connected by a shared bathroom. Coming across the encounter in one man’s bed, a nursing assistant did not see the 65-year-old objecting and did not intervene or investigate further. In another case, that same 65-year-old man was witnessed fondling a 77-year-old female resident suffering from Alzheimer’s, low cognitive functioning and severe impairment. An aide witnessed that incident and separated them because of the woman’s auditory challenges, but did not intervene further.

Reingold said the interaction between the two men suggested consent, "I didn’t think it was unreasonable for a nursing staff member to look at it and say that it’s basically consensual. It’s tricky. It’s a tricky balance to make, but I’m a little disheartened that the court felt this way.”

Reingold, who also holds a law degree and reviewed the court’s decision, believes the decision to be the highest court ruling related to sexual behavior between residents of nursing homes who have dementia. He said it will “absolutely” be used to establish precedent, and is concerned that it will be used by plaintiffs’ attorneys to file lawsuits against SNFs.

Of course, among the concerns for elderly residents, their loved ones, and fiduciaries, are the consequences of what may be deemed to be violations of these policies, especially if they are poorly articulated, or inconsistently enforced or applied.  To make consideration of these matters more dire, there is possible criminal consequence, such as a husband encountered upon seeking to continue sexual relations with his wife after she became a resident of an institution.   

For nursing homes, Reingold offered three steps leaders can take following this precedent-setting court decision:

• Make sure that the facility has very carefully drafted policies and procedures.
• Be sure that nursing staff are well trained in exactly how to deal with cases where there is sexual interaction between residents, particularly those who have experienced cognitive decline.
• Document specific interventions in the chart. 

Of course, elderly residents, their families, loved ones, and fiduciaries can, and should, inform themselves and their principals of these rules, and review incident reports for possible violations.  Inspecting, identifying, and tracking physical injuries, and noting emotional or psychological changes can also aid in identifying violations. 

For its part, in a statement sent to McKnight’s after the initial story ran, a spokeswoman  for the nursing home emphasized that the fine was related to an interaction between two consenting adults:  

“While the facility accepts the court’s ruling we respectfully disagree and continue to advocate that all residents have the right to privacy in their interactions with their peers and loved ones.” 

As if there is not already a host of considerations a senior resident, his or her family members, and fiduciaries must resolve. Of course, staying at home, if possible, avoids these considerations and risks.