Under the updated Requirements of Participation (RoPs), the Centers for Medicare & Medicaid Services (CMS) greatly expanded the Interpretive Guidance related to abuse at F600 Free from Abuse and Neglect. In our prior two posts reviewing F600, we looked at types of abuse and abuse scenarios related to different involved parties, whether it is staff members or residents or visitors. While we provided an overview on the types of abuse in Part 1, this week’s post is going to focus on sexual abuse, which is a topic with significantly expanded IG to consider and be aware of.
The Importance of Consent
In recent years, many nursing homes have taken significant strides to ensure that their residents are free to express themselves sexually in a safe manner. The IG at F600 provides detailed information on determining consent, stating that any investigation of an allegation of resident sexual abuse must first determine whether the resident consented to the sexual activity.
- A resident cannot consent to engage in sexual activity if he/she does not have the capacity to consent or if the consent is obtained via intimidation/coercion/fear.
- If sexual activity is forced/coerced/extorted, no matter what the circumstances of the relationship, CMS considers this sexual abuse.
The facility is responsible for investigating when there is non-consensual sexual activity and protecting the resident at any time the facility suspects that the resident does not wish to participate in sexual activity or if that resident does not have the capacity to consent. If the facility suspects that a resident may not have the capacity to consent, then it must conduct a capacity evaluation, because residents who do not have the capacity to consent to sexual activity may not engage in this type of activity.
The Interpretive Guidance provides reference information on determining consent, including that capacity to consent to one thing does not mean capacity for all things. Specifically, it states: “Capacity at its most basic level means that a resident has the ability to understand potential consequences and choose a course of action for a given situation. Decisions of capacity to consent to sexual activity must balance considerations of safety and resident autonomy, and capacity determinations must be consistent with State law, if applicable.” This means that the facility’s P&Ps need to identify all of the details about how capacity will be determined, by whom and when.
Residents with a Designated/Legal Representative
Some residents may have legally appointed representatives with varying amounts of decision-making power. The IG states that it is the facility’s responsibility to determine what types of decisions this representative may make on behalf of the resident, including those related to consent for sexual activity. This can become tricky for the facility, because if a resident has the capacity to consent to sexual activity and the representative disagrees, this can create an uncomfortable scenario. However, the IG notes that the facility is expected to honor the resident’s wishes unless the resident’s representative has legal authority that addresses decision-making in this area, at which point the facility must respect the representative’s decision.
Indicators of Potential Sexual Abuse
The Interpretive Guidance includes a list of potential physical indicators of physical abuse, but clearly states that “the most prevalent psychosocial outcomes of abuse are depression, anxiety and posttraumatic disorder,” as well as sudden/unexpected changes in usual behavior patterns or activities.
Allegations of Sexual Abuse
If there is an allegation of sexual abuse, the facility is required to take several steps. First, the facility must report the allegation to the appropriate authorities and implement safeguards to prevent any further potential abuse. Then the facility is also required to thoroughly investigate the allegation of abuse and document and report the outcome of the investigation. It is essential to keep the resident safe during the course of the investigation.
Allegations of Staff to Resident Sexual Abuse
- Staff must recognize that engaging in a sexual relationship with a resident is inconsistent with the person’s role as a caregiver, and is considered to be an abuse of power, even if the relationship is seemingly consensual.
- If the staff member had a pre-existing sexual relationship with a resident who is then admitted to the nursing facility, then this may not be considered sexual abuse unless there are concerns about whether the activity is consensual or not.
Allegations of Resident to Resident Sexual Abuse
- Any allegation that a resident who did not wish to engage in sexual activity with another resident or who may not have the capacity to consent requires that the facility responds as though the activity is an alleged violation of sexual abuse.
Allegations of Visitor to Resident Sexual Abuse
- If a resident and visitor had a pre-existing sexual relationship before the resident entered the facility, this type of sexual activity may not be considered sexual abuse. This would require that the resident has the capacity and ability to consent and that the resident wishes to continue this type of activity. If there is an allegation/suspicion that a visitor is engaging in improper sexual behavior with a nursing home resident, the facility must immediately act.
Response to Alleged Violations of Sexual Abuse
As mentioned above, if there is an allegation of sexual abuse, the facility must immediately protect the resident from any further potential abuse. The alleged violation needs to be reported to the Administrator and any authorities and investigated. The IG notes that while the investigation is underway, the facility needs to ensure that any potential evidence, such as bed linens or clothing, is not tampered with which would impede the investigation.
In our next Ftag of the Week, we will look at the second component of F600 regarding the resident’s right to be free from Neglect.
