Navigating the nuances of nursing home resident sexual encounters has to be an extremely difficult proposition for administrators, and things just got a little thornier after a recent court ruling.
The case in question relates to the Neighbors Rehabilitation Center in Byron, IL, which had a policy of intervening between residents with dementia, but only when there were “outward signs” of non-consent. Federal officials decided this wasn’t enough to protect Neighbors’ residents, fining the facility more than $83,000. Earlier this month, an appeals court upheld the decision, noting there was “substantial evidence” to back up CMS’ assertion that the policy was misguided and left residents in danger of victimization, McKnight’s reported.
One 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 in the incident. 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.
Neighbors’ policy stipulated that it would intervene only when there were outward signs of non-consent, and the judge deemed that was insufficient. Reingold believes that’s “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 case involves Neighbors’ handling of 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.
“I didn’t think it was unreasonable for a nursing staff member to look at it and say that it’s basically consensual,” Reingold said referencing the interaction between the two men. “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 this could possibly 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 further lawsuits against SNFs.
For nursing homes, Reingold offered three steps leaders can take following this precedent-setting court decision:
- Make sure that you have 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. In this case, it appeared that records didn’t necessarily support the reasonable efforts made by nursing home staff.
For its part, in a statement sent to McKnight’s after our initial story ran, a Neighbors spokeswoman emphasized that the fine was related to an interaction between two consenting adults.
“While the facility accepts the court’s ruling,” the company said in a statement, “we respectfully disagree and continue to advocate that all residents have the right to privacy in their interactions with their peers and loved ones.”
Follow Staff Writer Marty Stempniak @MStempniak.