Nursing homes are critical in providing residents with care, comfort and dignity. Among the many aspects of resident well-being, the right to sexual expression is a resident right that is required to be supported. However, this right must be balanced with the need to protect vulnerable residents from potential sexual abuse. Nursing homes need to navigate this delicate terrain with care, sensitivity and a commitment to creating a safe and respectful environment for all residents.
Sexual Expression in Nursing Home Residents
A survey of administrators in the State of Kansas to investigate the scope of sexual expression identified that 84% of nursing home administrators reported instances of sexual expression among residents in their community within the past year, and 55% reported expressions involving an individual with cognitive impairment. Approximately 40% of administrators reported having a policy related to sexual expression.
Resident Rights in Nursing Homes
Under the resident rights provisions in 42 CFR § 483.10, nursing home residents generally have a right to a dignified existence, self-determination, personal privacy, to share a room with their spouse who is also a resident of the nursing home (if both of them consent), and to receive visitors at all times, including visits from a spouse or domestic partner.
Under 42 CFR § 483.12, a resident also has the right to be free from abuse, neglect, misappropriation of resident property and exploitation. “Sexual abuse” is defined at 42 CFR § 483.5 as “non-consensual sexual contact of any type with a resident.”
CMS Viewpoint
In Appendix PP of the State Operations Manual, the Centers for Medicare & Medicaid Services (“CMS”) declared that residents have the right to engage in consensual sexual activity. However, anytime the nursing home suspects that a resident may not have the capacity to consent to sexual activity, the nursing home must ensure that the resident is protected from abuse. These steps should include evaluating whether the resident can consent to sexual activity.
CMS also directs that any investigation of an allegation of resident sexual abuse must start with determining whether the sexual activity was consensual on the part of the resident. A resident’s apparent consent to engage in sexual activity is invalid if it is obtained from a resident lacking the capacity to consent or if consent is obtained through intimidation, coercion or fear, whether expressed by the resident or suspected by staff. Any forced, coerced or extorted sexual activity with a resident, regardless of the existence of a pre-existing or current sexual relationship, is considered to be sexual abuse. A nursing home is required to conduct an investigation and protect a resident from non-consensual sexual relations anytime the nursing home suspects that the resident does not wish to engage in sexual activity or may not have the capacity to consent.
Fines Possible for Nursing Homes
In 2018, the United States Court of Appeals for the Seventh Circuit released an opinion that confirmed a CMS assessment of an immediate jeopardy citation and an $83,800 civil money penalty against a nursing home for inadequately addressing sexual interactions between cognitively impaired nursing home residents. The nursing home had a policy of intervening in sexual interactions only when a resident displayed outward signs of non-consent.
Capacity to Consent
In Appendix PP of the State Operations Manual, CMS outlined that determinations of capacity to consent depend on the context of the issue, and one determination does not necessarily apply to all decisions made by the resident. For example, the resident may not have the capacity to make decisions regarding medical treatment but may have the capacity to make decisions on daily activities (e.g., when to wake up in the morning, and what activities to engage in). Determinations of capacity to consent to sexual activity must balance considerations of safety and resident autonomy and be consistent with state law, if applicable.
Resident Assessments
Nursing homes should have a process for assessing residents’ capacity to consent to sexual activity. These assessments should include learning if the resident knows relevant information (including risks/benefits of sexual activity), whether the resident understands the resident’s sexual options and the consequences of sexual choices, and whether the resident is engaging voluntarily in sexual activity. These assessments should occur periodically.
The nursing home administration and medical director may wish to consider establishing an ethics committee that includes legal consultation to assist in developing and implementing policies related to aspects of quality of life and/or care, advance directives, intimacy and relationships.
Sexual Expression Policies and Procedures
Nursing homes must review or prepare policies and procedures on resident sexual expression. The goal of the policies is to ensure that: (1) the nursing home staff are called to be familiar with the resident’s capabilities and behaviors; (2) the nursing home has a requirement to undertake an investigation into whether sexual interactions were consensual and whether a resident can consent; and (3) the nursing home ensures that the staff documents a resident’s capacity for consent (or lack thereof) or communicate with the resident’s physicians for medical assessment of how their cognitive deficits impact that capacity.
A nursing home’s policies, procedures and protocols should identify when, how and by whom determinations of capacity to consent to sexual contact will be made and where this documentation will be recorded.
Training
Nursing home staff should be trained on resident rights pertaining to sexual expression, especially among residents with dementia. The training should identify that capacity to consent to sexual activity is fluid and can change over short or long periods.
Practical Takeaways
- Anytime a nursing home has reason to suspect that a resident may not have the capacity to consent to sexual activity, the nursing home must ensure the resident is evaluated and assessed for capacity to consent.
- Nursing homes should carefully review and revise their policies and practices to address staff attention to and training on the sexual activity of cognitively or physically impaired residents.
Hall Render has developed policies and procedures for nursing homes to achieve compliance with nursing home regulations. For more information about these policies and procedures or about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@hallrender.com; or
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
