Failure to Develop Policy for Assessing Resident Sexual Consent Capacity
Penalty
Summary
The facility failed to develop and implement a policy or procedure to assess residents' capacity to consent to sexual contact, as evidenced by the lack of any such policy for two residents who were involved in incidents of sexual contact. The administrator and DON confirmed that no assessment tool or policy existed to determine a resident's ability to consent to sexual activity, and staff typically relied on the BIMS score without a formal process. This deficiency was identified during a review of incidents involving two residents with a prior relationship who engaged in sexual contact within the facility. One resident was noted to be severely cognitively impaired, with a BIMS score of 03 and diagnoses including Alzheimer's disease, vascular dementia, and altered mental status. This resident was observed to seek out another resident, with whom they had a previous relationship, and was involved in two documented incidents: one involving kissing and another where the other resident grabbed them in the vaginal area over their clothes. Staff and care plan documentation indicated that the residents were redirected and monitored following these incidents, but no formal assessment of consent capacity was conducted. The second resident involved was cognitively intact, with a BIMS score of 15, and had diagnoses including depression and amnesia. This resident was also involved in the incidents and apologized for their behavior after being confronted by staff. Interviews with staff and administration confirmed that there was no history of similar behavior with other residents and that the facility had not previously encountered a situation requiring assessment of sexual consent between unmarried residents. The lack of a policy or assessment tool to determine consent capacity constituted the deficiency identified by surveyors.