An 18-year-old high school student who worked at a nursing home started having sex with multiple residents, then told his friends they should also apply for jobs in these facilities.
A nursing assistant began a sexual relationship with a resident more than 50 years her senior – even though she wasn’t interested in men – in an effort to steal his money.
And staff and police found a physical therapy assistant at one long-term care facility in a darkened therapy room attempting to have sex with an 80-year-old woman who'd gone missing.
“She’s not at fault; she wanted that,” said Kaye Lynn Wootton, director of the Medicaid Fraud and Patient Abuse Division within the Utah Attorney General’s Office, as she recounted these stories to state lawmakers last year.
“But the physical therapy assistant, when he was interviewed and asked, ‘Did you have feelings for her? What was going on here?’ He said, ‘No. But she wanted me to, and I was willing,’” Wootton continued.
These cases highlight a problem the Utah Attorney General’s Office told lawmakers it’s been seeing more frequently: consensual sexual relationships between residents at long-term care facilities, like assisted living centers and nursing homes, and the unlicensed staff who are paid to provide their care.
At the heart of these relationships is a clear power imbalance, Wootton told lawmakers, that can leave vulnerable adults “very, very susceptible.”
“Imagine when that relationship, if there was a real relationship, goes south,” she said. “Those same people have to bathe them and dress them. And it’s just inappropriate and puts these people in a very bad position.”
But because there was consent in each of these cases, Wootton said, there was no way to move forward with criminal charges against the providers involved.
Utah law clearly prohibits non-consensual sexual contact between staff and patients in facilities. And licensed professionals – like doctors and nurses – are prohibited under professional conduct rules from engaging even in consensual sexual relationships with their patients.
But many of those who work in nursing homes and assisted living facilities are unlicensed, including Certified Nursing Assistants (CNAs), housekeepers and food service employees.
If these employees enter a consensual relationship with a patient they care for, they could be fired. But because there's no board to discipline them, there are no long-lasting professional consequences.
“There really isn't a lever to have the ability one to potentially pursue any sort of consequences or justice from it or to have any traceability from it,” noted Sen. Jennifer Plumb, D-Salt Lake City, in an interview with FOX 13 News.
Sen. Jennifer Plumb (D-Salt Lake City) explains below why it’s difficult to track consensual sexual relationships between unlicensed care workers and patients at long-term care facilities:
Plumb, an emergency room doctor, sponsored a bill last year to criminalize such relationships, noting there’s currently no way to track employees with a history of past concerns.
For that reason, it's unclear how often these cases are happening. But while working on the bill, Plumb said she heard stories about “individuals who had jumped from one facility to another facility to another facility to another facility.”
"When you bring a conversation up like this with policy, it is interesting how many people say, ‘Oh, let me tell you what I saw happen,’ or ‘let me tell you what happened in my family,’ or ‘let me tell you what happened with me,’” she said. “I think this is happening frequently enough we probably need to look at what sort of standard we can set up and what sort of protections we can put in place.”
'I DON'T THINK THE ANSWER IS TO CRIMINALIZE THAT'
Nate Crippes, an attorney with the Disability Law Center, said that many people – though “not all” – agreed during debate of Plumb’s bill that it's not appropriate "for a person in a position of power in a health care setting to engage in sexual conduct" with a patient.
But in the end, the debate over the bill proved too complex, and “it was not able to get enough support” to pass in the House, Plumb noted.
Some felt the state shouldn’t be criminalizing consensual sex. Others wanted to see harsher penalties than those outlined in the bill.
The Disability Law Center was among the groups that spoke against the legislation, arguing that its focus on sexual relationships involving “vulnerable adults” was too narrow.
In video below, Plumb responds to criticisms about criminalizing consensual relationships:
"My colleague uses a wheelchair," Crippes noted in an interview with FOX 13 News. “And if each of us were to engage in sexual conduct with a nurse who was providing us care or something like that, it would be a crime for that nurse if she or he did that with him but not with me. And that really seemed discriminatory to us.”
He believes a better way to address these relationships would be through new licensing requirements.
“If there’s a subset of the health care industry – you know, the CNAs or the techs or whatever they are – that are unregulated such that they can go around and engage in activity they shouldn’t, get fired and then just go get another job, I don’t think the answer is to criminalize that,” he argued in an interview.
Plumb said she would also have preferred to address the issue through licensing but felt there was “no way as a state that we could do that.”
“That means there has to be a criminal penalty piece associated with it,” she countered. “Otherwise, we are not going to be able to track these and we are also not going to be able to disincentivize it.”
Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, explains below why she believes even consensual relationships in long-term care facilities involve a power dynamic:
Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, said facilities should have measures in place that prohibit staff from entering into relationships with patients, given the “power dynamic” and “likelihood of coercion or of abuse.”
“In order to protect the facility, frankly, from liability, you know, and to protect the residents, it should just not be allowed, and there should be policies addressing that,” she said in an interview.
Wootton, speaking to legislators last year, said Plumb’s legislation would have helped to eliminate doubt and ensured care providers “know it’s inappropriate” to enter into consensual relationships with patients.
For now, without a more systemic solution, “it may be that all we do ultimately get out of this is that awareness piece, and people's maybe feeling that they can advocate for themselves or for their family members,” Plumb said in an interview.
“Maybe that's where we ultimately get is there isn't something put in code,” she added. “But that's still a win. To me, that's still a win.”
Plumb told FOX 13 News that she does not plan on sponsoring the legislation again during this year’s session but may be interested in exploring the issue again in the future.
Read more from FOX 13’s ongoing coverage of Utah’s long-term care industry here:
- Q&A: Utah’s Long-Term Care Ombudsman is ready to advocate for you and your loved ones
- Utah’s Adult Protective Services is substantiating few cases of elder abuse
- What you should know before choosing a nursing home
- Older adults are wandering away from Utah care facilities, sometimes with tragic outcomes
- Critics say taxpayer dollars for nursing homes should be spent on care, not new buildings
- Nursing homes receiving millions in extra taxpayer funds face allegations of poor patient care