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.

"SICK, DYING AND RAPED IN AMERICA'S NURSING HOMES" - CNN Exposes Sexual Abuse in Long Term Care Institutions

Nursing home residents are among the nation's most vulnerable.  Many suffer from illness, disabilities, Alzheimer’s or dementia,  mobility limitations, and speech or hearing impairments.  They are often weak, fragile, and unable to defend themselves. A CNN investigative report has exposed  that, rather than protecting these vulnerable seniors, many long term care facilities expose them to sexual assault, abuse, and rape.  Worse, the abusers are often protected by the facilities, regulators, and legal systems. Although elder sexual abuse can occur anywhere, it ragically occurs most often in nursing homes.

In the explosive exposé, the first installment of which is entitled "Sick, Dying, and Raped in America's Nursing Homes," CNN reported  “this little-discussed issue is more widespread than anyone would imagine. Even more disturbing, in many cases, nursing homes and the government officials who oversee them are doing little -- or nothing -- to stop it.” 

More specifically, “more than 16,000 complaints of sexual abuse have been reported since 2000 in long-term care facilities.” This number wholly fails to reflect the  true extent of the problem because it includes “only those cases in which state long-term care ombudsmen (who act as advocates for facility residents) were somehow involved in resolving the complaints.”  As might be expected, ombudsmen are only rarely involved in such incidents, and as a result, the statistic only serves to illustrate a far greater underlying problem.  

Regardless, whatever statistics or surveys one is able to ferret from which to create data, sexual abuse in nursing homes and other long term care institutions is vastly under-reported.  According to a report prepared by the  National Research Council, “a vast reservoir of undetected and unreported elder mistreatment in nursing homes" exist precisely because the population is vulnerable.  "Because nursing home residents as a class are both extremely physically vulnerable and generally unable either to protect themselves or report elder mistreatment they experience, the physical and emotional costs of elder mistreatment in such environments are likely to be very high."

Further frustrating appreciation of the problem is wanton concealment by the industry.   CNN  found, “the federal government has cited more than 1,000 nursing homes for mishandling or failing to prevent alleged cases of rape, sexual assault and sexual abuse at their facilities during this period...[a]nd nearly 100 of these facilities have been cited multiple times during the same period.”  CNN interviewed family members who believed their loved ones were being violated as well as nursing home employees who claim to be forced from their jobs for disclosing sexual abuse suspicions. They also spoke to advocates for the elderly and to industry insiders who agreed that immediate change is needed in regard to how alleged sexual abuse reports are handled.

Shockingly, the federal and state regulatory agencies make identification of even reported cases difficult, because, despite the frequency and extent of the problem:

"Despite the litany of abuses detailed in government reports, there is no comprehensive, national data on how many cases of sexual abuse have been reported in facilities housing the elderly."

State health investigators examine all types of abuse reported at nursing homes and assisted living facilities, whether reported by the facilities or flagged by complaints to the state from witnesses, family members or victims. In the case of nursing homes, state officials typically conduct these investigations, as well as routine inspections, on behalf of the federal Centers for Medicare & Medicaid Services (CMS), which regulates the more than 15,000 facilities that receive government reimbursements that pay for many residents' care. Both state health agencies and the federal government then use the information to rate facilities and issue financial penalties for the worst offenders.

CNN surveyed the health departments and other agencies that oversee long-term care facilities in all 50 states. Of the states that could provide at least some data, the responses varied widely.   Wisconsin, for example, reported it didn't have a single substantiated report of abuse in the last five years!  Worse than the unbelievable, is that most states were wholly unable to say how frequently abuse investigations involved sexual allegations, often stating that sex abuse allegations are not categorized separately from other forms of abuse.

The federal government doesn't specifically track all sexual allegations either. CMS lumps sexual allegations into a category that includes all kinds of abuse, such as physical or financial. CMS told CNN that it did not segregate sexual abuse because it takes all forms of abuse seriously.  It is unclear whether CNN asked CMS why, then, it tracks some incidents, rather than others?  When asked by CNN, the agency conducted a specialized search using sex-related keywords, but because not every case was sexual in nature, CNN had to review each case individually to filter out any irrelevant citations.

According to CNN, "the reports show that 226 nursing homes have been cited for failing to protect residents from instances in which sexual abuse was substantiated between 2010 and 2015." Of these cases, "around 60% resulted in fines, which totaled more than $9 million -- though only 16 facilities were permanently cut off from Medicare and Medicaid funding."  Because the federal government only regulates nursing homes, CNN's analysis did not include assisted living facilities.

In the installment entitled, "Six Women. Three Nursing Homes. And the Man Accused of Rape and Abuse," CNN followed the trail of a nursing aide who was a serial sexual offender, and despite having demonstrated an obvious and discoverable pattern of sexual abuse and rape, was able to move from one facility to another.   With a history of sexual abuse allegations, the aid continued to find employment in the nursing home profession.   CNN found that nursing home officials are quick to dismiss a resident’s sexual abuse claims as "hallucinations" or "fantasies."  CNN also discovered that state labor laws often protected abusers, and discouraged administrators from properly disciplining serial abusers.  

Although women are, by far, the most common victims of sexual abuse in long term care institutions, men, too, are often victimized. Sexual abuse of older men in nursing homes crosses traditional gender, cultural, and role boundaries for both victims and perpetrators.

Worse, although most offenders are "loners," who commit their abuse secretly and alone, CNN discovered a frightening number of examples in which abusers conspire to commit sexual abuse of the most vulnerable, spurred in part by a form of dehumanizing "mob mentality:"  

For months, a group of male nursing aides at a California facility abused and humiliated five male residents -- taking videos and photos to share with other staff members. One victim, a 56-year-old with cerebral palsy, was paraded around naked. Another, an elderly man with paralysis who struggled to speak was pinched on his nipples and penis and forced to eat feces out of his adult diapers. He was terrified his abusers would kill him. While the aides lost their certifications, an investigation by Disability Rights California found that many of them never faced charges.

Another group of nursing aides, teenagers in Albert Lea, Minnesota, tormented at least 15 male and female residents, many of whom suffered from Alzheimer's. The female aides struck, poked and rubbed the residents and touched their breasts. They inserted their fingers into one resident's rectum. They rubbed the residents' crotches and laughed. One aide pulled down her own pants and sat on a female resident's lap -- humping and groping her. "I was basically appalled by the callous disregard for human decency," a judge later said. Two of the abusers, who were 18 at the time and convicted of disorderly conduct by a caregiver, served 42 days in jail. The other teens were tried in juvenile court and faced no jail time at all. (emphasis added).

Detection of the crime can be difficult, if not impossible.  Residents often are unable to complain or report details of attacks.  Physical evidence is often scant.  Even when combined with strangulation, which is occurs in as many as one quarter (25%) of reported sexual assault cases, there may be no obvious physical signs or marks of the assault.  Strangulation requires less pressure than the pressure of an average handshake; it is possible to strangle a person to death and leave no  marks or signs.  

The psychological and emotional trauma is too easily ignored when exhibited by the elderly.  Sexual assault can cause  anxiety, depression, suicidal thoughts, PTSD, memory loss, and when combined with strangulation or use of force, even stroke. Victims may have lost consciousness during the assault,  and may have trouble recalling details of the sexual assault. They may also be embarrassed by some of their symptoms, such as urinary or fecal incontinence.  These effects are often attributable to other causes or conditions suffered by the elderly.  Sadly, CNN found that workers often lacked specific training needed to spot sexual abuse -- keeping reports of abuse from ever reaching authorities.

Certainly, many nursing home employees promptly report abusers to authorities as required by federal law and assist in the investigations. But in numerous examples of abuse uncovered by CNN, the facilities themselves made it possible for violent rapes and sexual assaults to go unchecked, unreported, and poorly or incompetently investigated.  Allegations are routinely questioned or dismissed because victims have cognitive conditions such as Alzheimer's.  According to CNN, "the reputation and safety of the facility may take priority: There's often a fear that bringing investigators into a cash-strapped facility may expose other issues, threaten a nursing home with closure or open the door to costly lawsuits."

CNN reported on one such case:

When the chef at an assisted living facility, was arrested in Louisiana last year in the alleged rape of a 78-year-old resident, a director at the facility, Julie Henry, was quick to issue an emotional statement to local media -- claiming the company was "shocked and disheartened." But not long after, Henry was arrested, accused of orchestrating an elaborate cover-up of the abuse. According to police, she had tried to prevent an investigation by instructing staff not to report the incident. She asked employees at the assisted living facility, Beau Provence Memory Care, to hand over all evidence to her, which she then allegedly destroyed. The chef, Jerry Kan, was indicted on a first first-degree rape charge and has pleaded not guilty. The case is ongoing and his attorney declined to comment.  

CNN reported that at the time of publication, "Henry has not been indicted."

The National Association of Health Care Assistants responded with a pledge to act. They stated its members are “saddened and sickened by the CNN investigative report” and planned to increase training and education within its membership. They said this includes ensuring that nursing assistants know how to identify warning signs of potential abuse and the proper mechanism for reporting it to higher authorities.

AMDA – The Society for Post-Acute and Long-Term Care Medicine, also responded:

AMDA emphatically condemns any type of abuse of post-acute and long-term care (PALTC) residents, and stands by its mission to promote and enhance the development of competent, compassionate, and committed medical practitioners and leaders to provide the highest quality, goal-centered care to patients and residents across all PALTC settings.

Adequate education, training, and leadership is vital to ensuring the safety, comfort, and quality of life of PALTC residents and patients. For 40 years, the Society has worked to:

• Train practitioners to identify and report elder abuse – Society educational programs including the Annual Conference, and the Core Curriculum on Medical Direction in PALTC provide education on residents’ rights, elder mistreatment, and more.

• Train practitioners to provide high-quality care to all patients, and to be aware and able to properly deal with issues made more complicated when treating patients with cognitive impairments. Sexual activity among residents in PALTC settings is a challenging topic for all parties. The Society continues to work on educational and policy initiatives to protect and better care for patients with cognitive impairments.

The Society believes that it is vitally important to provide patient-centered care in all circumstances, to all patients, listening to and investigating all complaints, concerns, and other comments by patients and family members. The Society will continue to train health care practitioners, advocate for them, their patients and family members, and educate the public, to advance its mission: A world in which all PALTC patients and residents receive the highest-quality, compassionate care for optimum health, function, and quality of life.

Legislative solutions are often proposed, but provide a mix of possible solutions.  On one hand, the State of Missouri is taking measures to allow hidden cameras within nursing homes to catch offenders. Other legislation, however, is aimed at making it much harder to take legal and punitive action against nursing homes that have a problematic past.

Iowa is considering legislation aimed at limiting the legal liability of nursing homes as well as doctors and facilities in the medical industry, in order to cut health care costs affected by huge lawsuit amounts.  Advocates for nursing home abuse victims are strongly opposed to such legislation, but they also often oppose on worker and resident privacy grounds remedial efforts, such as cameras.  . Some suggest that without the threat of litigation, nursing home companies are free to operate without accountability, notwithstanding that large lawsuit recoveries don't appear to be effective currently in creating accountability.  

Looking for legislative solutions, however, is likely a fools errand.  The problem is not new. As a 2003 National Academies Press Report lamented: 

We are not the first to lament the poor state of knowledge about elder mistreatment. In 1986, a consensus conference of leading researchers (including two of our panel members) was convened at the University of New Hampshire to point the way toward advancing knowledge. The conclusions and recommendations reached at that conference are strikingly similar to those appearing in this report. (emphasis added).

The best solution to institutional care risks remains avoiding institutional care.  "Aging in Place" should be a significant discreet objective of your estate and financial plan.