Sexuality in SNFs: Balancing resident rights and resident safety

"There’s too much sex and craziness that’s going on. Now they’re bringing it to the nursing home, and it don’t [sic] belong there," according to the son of a nursing home resident who recently filed a suit against a New York facility.¹ The lawsuit stems from the nursing home’s decision to allow a male stripper to visit the facility and perform as if he were a Chippendale.²

Apart from the merits of the case, this recent incident forces us to consider a growing concern among nursing home administrators—how to handle residents’ sexuality. Is there, as the plaintiff states, "too much sex" going on in nursing homes? The answer: it depends.

The need for love, intimacy, and companionship is a basic human need that people share, regardless of age. But prejudicial and stereotypical views are not uncommon regarding sexuality among nursing home residents. Until fairly recently, the sexual needs—and rights—of nursing home residents have not really garnered the attention they deserve.

REGULATORY BACKGROUND

Federal regulations provide that married couples in nursing facilities may share a room when both spouses consent to the arrangement [42 C.F.R. § 483.12(m)]. Further, on June 28, 2013, the Centers for Medicare and Medicaid Services (CMS) issued a directive stating that residents have a right to visitors on a 24-hour basis, including same-sex spouses and domestic partners.³

The applicable regulations require facilities to accommodate residents’ "individual needs and preferences" so long as other residents are not endangered [42 C.F.R. § 483.15(e)]. If two residents, legally married or not, want to be together, they have that right. Whatever those residents choose to do, as long as both have the capacity to consent and there is no risk of harm to either resident or a violation of a regulation, it is their right to be together and to have privacy.

The exact number of residents in nursing homes who are sexually active is unknown. What is known is that approximately 1.6 million residents live in nursing facilities. While studies reveal that the prevalence of sexual activity generally declines with age, the elderly population has certainly not abandoned normal sexual intimacy. Sexuality is a basic human need that normal people carry throughout their lives. The sexual needs of the elderly population are similar to the needs that they had when younger, although the frequency, intensity and manner of expression may vary with aging.⁴

According to a recent study in the New England Journal of Medicine, the following percentages of age groups engaged in sexual activity: 57-64 years of age 73 percent; 65-74 years of age, 53 percent; and for the group aged 75-85 years old, 26 percent.⁵  Clearly, a significant proportion of nursing home residents remain sexually active.  

THE 'RIGHTS VS. SAFETY' CONUNDRUM

The challenge for nursing facilities does not concern situations where competent, consenting adults choose to be sexually active. However, when residents with significant cognitive impairment want to engage in sexual intimacy, facilities must be hyper-vigilant. Note: cognitive impairments do not necessarily preclude a resident from engaging in sexual activity. However, facilities must often determine whether a potential situation involving a resident’s sexual intimacy might create an opportunity for abuse.   

Serious problems on multiple levels may occur when residents with diminished decision-making capacity (DMC) or cognitive impairment are sexually active. Such a quagmire is illustrated by a recent case where two residents with dementia were observed engaging in sexual intercourse. The administrator was charged with professional incompetence, negligence and violating a regulation or law regarding the practice of nursing home administrators.⁶  The director of nursing (DON) and the administrator were terminated from the nursing home. The facility was cited by surveyors with "immediate jeopardy" and fined. And, the family of one of the residents sued the nursing facility.

At a hearing involving the former administrator, an experienced geriatrician testified that both residents were capable of consenting to sexual activity. The State’s Board of Nursing Home Administrators concluded that the sexual exchanges were consensual. To avoid a situation such as the one described above, the author suggests that all facilities take a proactive approach and develop reasoned and appropriate policies and procedures that respect resident’s rights while ensuring their safety, including the area of sexuality.

For those residents thought to be actually or potentially sexually active, facilities should consider having the resident’s physician and interdisciplinary team perform a multidisciplinary assessment. Based on that assessment, an individualized care plan should be developed, implemented, monitored and revised as needed.

RECOMMENDATIONS

Be proactive as a facility:

• Develop, implement, monitor and revise, as needed, policies and procedures regarding sexual intimacy among residents, including procedures for determining a resident’s ability to consent to sexual intimacy.
• Remember that "competency" is a legal determination (by a court) and "capacity" is a clinical determination.
• Educate all staff concerning resident rights and resident safety in general and in regard to intimacy issues.
• Educate staff that a resident’s decision-making capacity may wax and wane, and should be evaluated by the resident's physician and interdisciplinary team as needed.
• Recognize that some staff and others may have conflicting religious, cultural and moral values regarding sexual intimacy among nursing home residents, and be sure to provide education of residents’ legal rights and provide a forum for discussion.
• Contact the State survey agency before a problem arises, for guidance.
• Provide resources to empower your staff: Some good ones are:

– AMDA’s Clinical Practice Guidelines on Decision-Making Capacity

– Intimacy, Sexuality, and Alzheimer's Disease: A Resource List, National Institute on Aging, Alzheimer’s Disease Education and Referral Center, available at: https://www.nia.nih.gov/alzheimers/intimacy-sexuality-and-alzheimers-disease-resource-list

Do a cognitive ability assessment:

• Where a resident’s cognitive ability may be in question, ensure that the attending physician, medical director and/or psychiatrist make a clinical determination regarding a resident’s ability to consent to intimacy whenever decision-making capacity may be an issue.
• Make sure staffers know the difference between "competecy" and the mental "capacity" to decide on sexuality matters.
• Make sure the cognition assessment is part of the redsident's record, so all parties are aware.

Should a problem or question arise concerning a resident’s sexuality activities:

• Document all pertinent information in timely way. Details and timeliness are important.
• Engage the QAPI or Quality Assurance committee and compliance committee (both committees, being required, should be in place at your facility).
• Involve the facility’s Ethics Committee, if one exists.
• Seek input from the State Long Term Care Ombudsman and State survey agency, where appropriate.
• Consult legal counsel as appropriate.

CONCLUSION

A paramount concern when respecting residents’ rights is to ensure the safety of the resident. A facility’s obligation is to take all reasonable measures to ensure a resident’s safety while respecting the resident’s right to make choices, including the choice to safely enjoy intimacy. The Federal regulatory scheme provides that residents have autonomy and choice, to the maximum extent possible, about how they wish to live their everyday lives and receive care, subject to the facility’s rules, as long as those rules do not violate a regulatory requirement.

In all instances involving conflicts between resident’s rights and resident’s safety, the facility should engage in an interdisciplinary team approach and strive to involve all stakeholders in the decision-making process. The question isn’t whether or not conflicts between resident’s right and resident’s safety will occur. The only question is, “When will they occur?” Therefore, the facility should establish and implement appropriate policies and procedures proactively in order to have guidance when conflicts arise. For those situations that do not lend themselves to relatively straightforward solutions, the facility should seek the involvement of the State long term care ombudsman’s office, the State survey agency and counsel, as appropriate.

REFERENCES

1.  Almasy, S. Male Stripper goes to nursing home, elderly resident’s son goes to court. CNN, April 9, 2014. Available at: https://www.cnn.com/2014/04/08/us/nursing-home-stripper-lawsuit/. Last accessed on April 15, 2014.

2.  Id.

3.  CMS Survey & Certification Memorandum, Reminder: Access and Visitation Rights in Long Term Care (LTC) Facilities, S & C 13-42-NH. Available at: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-42.pdf. Last accessed on April 15, 2014.

4. Hajjar RR, Kamel HK. Sexuality in the nursing home, part 1: attitudes and barriers to sexual expression. J Am Med Dir Assoc. 2004 Mar-Apr;5(2 Suppl):S42-7.

5.  Richardson JP, Lazur A. Sexuality in the nursing home patient. Am Fam Physician. 1195 Jan;51(1):121-4. See e.g., U.S. Department of Health and Human Services, National Institute on Aging. Intimacy, Sexuality, and Alzheimer’s Disease: A Resource List. Available at: https://www.nia.nih.gov/alzheimers/intimacy-sexuality-and-alzheimers-disease-resource-list. Last accessed on April 15, 2014.

6.  In The Matter of Steve Drobot, Iowa Board of Nursing Home Administrators, Case No. 11-003. Findings of Fact, Conclusions of Law and Order. (September 11, 2012). Available at: https://www.idph.state.ia.us/licensure/Actions.aspx?board=Nursing%20Home%20Administrator. Last accessed on April 16, 2014.

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Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.