The 7th Circuit upheld a finding of Immediate Jeopardy regarding sexual encounters between residents with dementia. The facility in question had a “policy of intervening in sexual encounters only when “outward signs” of non-consent were displayed, according to court documents.” CMS determined that this was not adequate to protect residents and fined the facility for $83,000. The appeal by the facility argued that the residents have a right to have consensual intimate relationships, even if cognitively impaired.
It appears that the finding by CMS stemmed from its opinion that the facility failed to regularly reassess, care plan and supervise to adequately determine capability to consent. The 7th Circuit agreed.