Sexual encounters between residents with dementia at a nursing facility may not have been truly consensual, and the government was within its right to fine the facility accordingly, a court said in December.
Neighbors Rehabilitation Center LLC in Byron, IL, had a policy of intervening in sexual encounters only when “outward signs” of non-consent were displayed, according to court documents. The Centers for Medicare & Medicaid Services said this was not adequate to protect Neighbors’ residents, noting specific cases where residents were in immediate jeopardy due to sexual encounters. The agency fined the facility $83,800.
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.
But the U.S. Court of Appeals for the Seventh Circuit said there was “substantial evidence” to back up CMS, noting that the Neighbors policy was “misguided” and left residents at the risk of victimization. This was especially true when they had “severe cognitive or other deficits which may have adversely impacted their ability to actively protest or object.”
“Certainly, those who reside in long‐term care facilities are entitled to the dignity of maintaining intimate relationships,” the court wrote. “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.”
A Neighbors spokeswoman 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,” she said.