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Recent Seventh Circuit Court of Appeals Case Highlights Long Term Care Facility’s Duty to Assess Consent in Residents’ Sexual Activities

By Matthew F. Liebert

The Seventh Circuit Court of Appeals recently upheld a civil penalty assessed against a long term care facility by the Illinois Department of Public Health (“IDPH”) for failure to appropriately assess whether sexual activities between residents were consensual. The court’s decision highlights the importance of assessing the issue of consent when residents engage in sexual activities in long term care facilities, especially when the residents involved have diminished physical and/or cognitive capabilities. The court’s decision also provides guidelines on how long term care facilities should respond if they become aware that residents are engaging in sexual activities; these guidelines should be considered when formulating written policies and training staff.

The Court’s Opinion:

In Neighbors Rehabilitation Center, LLC, v. Unites States Department of Health and Human Services, et al., the Seventh Circuit Court of Appeals upheld a civil penalty of $83,800 against a long term care facility, Neighbors Rehabilitation Center, LLC, (“Neighbors”). The IDPH determined that Neighbors was not in compliance with federal and state regulations, because it inadequately addressed sexual interactions involving cognitively impaired residents. The IDPH found that Neighbors’ failure to act put the residents in “immediate jeopardy,” which is the most serious category of noncompliance, defined as one that “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” 42 C.F.R. § 488.301. The Seventh Circuit Court of Appeals upheld the penalty, finding it was supported by substantial evidence.

At issue was Neighbors’ response to two interactions between elderly residents with cognitive impairments. In the first instance, a staff member witnessed one resident touching another resident sexually in one of the resident’s rooms. The staff member did not intervene, because he did not see the resident objecting or demonstrating any signs of resistance. The staff member noted the interaction in both residents’ charts, but did not investigate further. The next day, a nurse witnessed similar behavior between the same residents, and she asked one of the residents to leave the room. The nurse later asked the residents about the interactions, and one of the residents did not remember them. The nurse was reprimanded by a supervisor for violating the facility’s policy of non-intervention, discussed further below. In the second instance, a resident made inappropriate sexual comments to and groped another resident. A nursing aid intervened, by separating the residents. Neighbors took no further action regarding these instances.

Neighbors’ policy was to allow residents to have consensual sexual interactions, and staff was not to intervene or report these interactions unless a participant showed outward signs of non-consent. Specifically, staff were taught to look for signs that a relationship was non-consensual, such as yelling, hitting, kicking, scratching, or pushing. Neighbors argued that its policy was based on the premise that all residents, even those with cognitive impairments, have the right to engage in consensual intimate relationships, and its policy balanced the residents’ need for privacy and dignity and the safety of each resident. The IDPH and the Seventh Circuit Court of Appeals criticized what it described as Neighbors’ “misguided non-intervention policy,” because it left residents at risk for victimization. The criticisms cited in the court’s opinion are informative regarding what the IDPH and courts would find to be appropriate policies for assessing consent.

Take-Aways from the Court’s Discussion Regarding Policies for Assessing Consent:

The Seventh Circuit Court of Appeals agreed that residents of long term care facilities are entitled to the dignity of maintaining intimate relationships; however, “when those residents are cognitively or physically impaired, care must be taken by a facility to ensure that those intimate relationships are consensual.” The court found that the Neighbors’ response to the sexual interactions between its residents was inadequate in that it failed to:

(1) talk to the residents about their feelings about the “relationships”;

(2) document the residents’ capacity for consent (or lack thereof);

(3) communicate with residents’ physicians for medical assessment of how their cognitive deficits impacted that capacity;

(4) discuss the developments with the residents’ responsible parties and/or families;

(5) record any monitoring of the behaviors; or

(6) make any care plans to account for the behaviors.

The court did not hold that all six of these responses must be implemented in every case involving sexual interactions between residents. However, facilities should consider adopting policies that include similar measures to assess consent. The Neighbors case did not specify how a resident’s capacity for consent should be assessed, but it made clear that a non-intervention policy that “presume[s] consent as long as there is no resistance,” is inadequate and puts residents at risk. The court noted that such a presumption would hold people with dementia or Alzheimer’s to a higher standard than courts hold the average person when assessing accusations of sexual assault or abuse, which do not require active resistance by the victim to demonstrate non-consent.

Other Sources for Guidelines for Policies Regarding Assessing Consent

The facility in the Neighbors case was not unique in attempting to assess consent and balance a resident’s right to dignity and privacy with the right to be safe and free from unwanted sexual contact. There are many resources facilities can reference in crafting policies and training materials regarding residents’ relationships. One example was published by the Board on Aging and Long Term Care Ombudsman Program (“BOALTC”), which includes guidelines and forms that may be used when assessing whether relationships are consensual. BOALTC, Recommendations for Addressing Residents’ Relationships, (March, 2014), available at https://ltcombudsman.org/uploads/files/issues/consent.pdf. The BOALTC offers guidelines for responding to residents’ relationships and sexual interactions that are similar to the approach discussed in the Neighbors case. The BOALTC goes further and discusses how a facility should assess a resident’s capacity for consent, advising that staff should evaluate whether:

(1) The person understands the distinctively sexual nature of the conduct. That is, that the acts have a special status as “sexual”;

(2) The person understands that their body is private and they have the right to refuse, or say “no.” They should also understand the other person should respect their right of refusal;

(3) The person understands there may be health risks associated with the sexual act (pregnancy, STD’s, cardiac, other health risks);

(4) The person understands there may be negative societal response to the conduct. (gossip, name calling, social fallout, stigmatized).

A multi-disciplinary team, including CNAs, nurses, rehabilitative therapists, social workers, and physicians, should be used in making these assessments and when responding after conduct has occurred. The BOALTC also recommends education of residents and their families regarding the issues of consent and the residents’ right to engage in consensual sexual activity. Thus, policies should reflect the need to assess and reassess residents’ capacity for consent and document and report any observed sexual interactions as appropriate.

Should you have any questions regarding these issues, or require assistance drafting a policy regarding residents’ relationships, please contact Michael A. Airdo at [email protected] or 312-506-4480,  Mollie E. Werwas at [email protected] or 312-506-4474, or Matthew F. Liebert at [email protected] or 312-506-4471.