There was an interesting recent case before the Seventh Circuit Court of Appeals involving the sexual activities of elder nursing home residents.
Illinois-based Neighbors Rehabilitation Center LLC, a recipient of Medicare funds, was fined a whopping $84,000 by the Centers for Medicare and Medicaid Services for what CMS said was its failure to sufficiently investigate whether sexual encounters between three of its residents were consensual.
The two men and one woman ranged in age from 65 to 80 years of age, and all were diagnosed with different degrees of dementia or Alzheimer’s. The female resident was effectively deaf.
Several of the encounters took place between the two male residents, and several between one of the males and the female. They all involved fondling of private parts and were witnessed by various staff members who walked in on the hanky panky in progress. The government authorities called the staff out for not properly following up with each of the residents to make sure they consented to the contact, and not alerting their physicians or family members about the activity, which put them in “immediate jeopardy.”
One of the encounters between the two men was interrupted by a nurse. The men were later questioned separately by the staff about the activity and denied having any memory of the encounter or that there was a sexual relationship between them. Neighbors took no further action.
One of the encounters between the male and female was terminated by a staff member who witnessed it, but no one followed up with the female patient to inquire as to her consent to the sexual activity.
The problem, according to CMS and the Seventh Circuit panel that confirmed its finding, was that Neighbors had a policy of investigating and intervening in the sexual activity of residents only if there was outward manifestation of resistance or nonconsent. Neighbors argued that was not the case in these situations, and also that these particular residents were unafraid to express resistance in other situations.
That wasn’t good enough, according to the panel, with persons who are cognitively impaired and at risk for victimization. Neighbors had a duty to try to inquire into consent — although it didn’t seem completely clear whether that duty is to ascertain consent in a general sense or in each and every individual encounter.
This case raises interesting questions. Our society is uncomfortable, to put it mildly, with the sexuality of the aged. It is considered cringeworthy and it's the butt of demeaning jokes. You probably chuckled at the title of this post. But you don’t necessarily stop having sexual desires or functionality even when your mind and the rest of your body is breaking down. Or the simple human desire for physical intimacy.
It’s quite possible the two male patients, having dementia, truly did not remember the encounter. And it’s also possible that they were embarrassed at getting “caught” and afraid they might be in trouble if they admitted it.
Imagine how awkward it is for the staff member who walks in, on the one hand wanting to respect a person’s privacy but trying to balance that with looking out for their welfare. Neighbors could have tried to communicate to the resident’s physician that these encounters were taking place and let them determine capacity for consent, rather than adopting a total look-the-other-way policy. But as a practical matter, is it really fair to expect nursing staff to play the sex police on every occasion. When dealing with a person with Alzheimer’s, someone could consent then later forget they consented or forget the incident ever happened.
It’s definitely a conundrum for long-term care facilities for the aged, but one consequence that might come out of cases like this is that, to avoid potential liability and hefty fines, facilities will err on the side of caution and segregate residents or adopt a policy that persons with cognitive impairments of any kind are categorically incapable of consent.
(The case is Neighbors Rehabilitation Center, LLC v. U.S Dep’t of Health & Human Svcs., No. 18-2147, 7th Cir., 2017)