Assisted Living Sexual Assault. Assisted living facilities deal with people with cognitive deficiencies with a wide range of abilities and risks for each resident.  Some residents are very mobile and active and other need assistance with transfer and other activities of daily living.

Despite the fact that many assisted living care providers charge more for a room and care than a nursing home there is a trade off you are getting a nicer room and usually newer more luxurious dining room and other areas but there very little training required to be a staff member in the facility.

According to Minnesota Statute 144G.03, Subd. 2, assisted living shall be provided or made available only to individuals residing in a registered housing with services establishment. Except as expressly stated in this chapter, a person or entity offering assisted living may define the available services and may offer assisted living to all or some of the residents of a housing with services establishment. The services that comprise assisted living may be provided or made available directly by a housing with services establishment or by persons or entities with which the housing with services establishment has made arrangements.

(b) A person or entity entitled to use the phrase “assisted living,” according to section 144G.02, subdivision 1, shall do so only with respect to a housing with services establishment, or a service, service package, or program available within a housing with services establishment that, at a minimum:

(1) provides or makes available health-related services under a home care license. At a minimum, health-related services must include:

(i) assistance with self-administration of medication, medication management, or medication administration as defined in section 144A.43; and

(ii) assistance with at least three of the following seven activities of daily living: bathing, dressing, grooming, eating, transferring, continence care, and toileting.

All health-related services shall be provided in a manner that complies with applicable home care licensure requirements in chapter 144A and sections 148.171 to 148.285;

(2) provides necessary assessments of the physical and cognitive needs of assisted living clients by a registered nurse, as required by applicable home care licensure requirements in chapter 144A and sections 148.171 to 148.285;

(3) has and maintains a system for delegation of health care activities to unlicensed personnel by a registered nurse, including supervision and evaluation of the delegated activities as required by applicable home care licensure requirements in chapter 144A and sections 148.171 to 148.285;

(4) provides staff access to an on-call registered nurse 24 hours per day, seven days per week;

(5) has and maintains a system to check on each assisted living client at least daily;

(6) provides a means for assisted living clients to request assistance for health and safety needs 24 hours per day, seven days per week, from the establishment or a person or entity with which the establishment has made arrangements;

(7) has a person or persons available 24 hours per day, seven days per week, who is responsible for responding to the requests of assisted living clients for assistance with health or safety needs, who shall be:

(i) awake;

(ii) located in the same building, in an attached building, or on a contiguous campus with the housing with services establishment in order to respond within a reasonable amount of time;

(iii) capable of communicating with assisted living clients;

(iv) capable of recognizing the need for assistance;

(v) capable of providing either the assistance required or summoning the appropriate assistance; and

(vi) capable of following directions;

(8) offers to provide or make available at least the following supportive services to assisted living clients:

(i) two meals per day;

(ii) weekly housekeeping;

(iii) weekly laundry service;

(iv) upon the request of the client, reasonable assistance with arranging for transportation to medical and social services appointments, and the name of or other identifying information about the person or persons responsible for providing this assistance;

(v) upon the request of the client, reasonable assistance with accessing community resources and social services available in the community, and the name of or other identifying information about the person or persons responsible for providing this assistance; and

(vi) periodic opportunities for socialization; and

(9) makes available to all prospective and current assisted living clients information consistent with the uniform format and the required components adopted by the commissioner under section 144G.06. This information must be made available beginning no later than six months after the commissioner makes the uniform format and required components available to providers according to section 144G.06.

Assisted Living Sexual Assault by Other Residents

Due to resident rights, a resident in a assisted living facility have a legal right to have a relationship even a physical one with other residents if there is consent.  Consent is the issue, at what point does one or both of the parties lose their legal right to consent to sex?   If there is an event without consent there may be civil liabilities for the facility and provider as well as potential criminal actions ranging from restraining orders to criminal charges.

Assisted Living Sexual Assault by Staff Members

There are also of course situations where staff members take advantage of the fact that resident’s may be confusion or have other cognitive issues that make them very vulnerable to sexual assault.  Staff members should have background checks to limit the ability of persons with a known history to have contact with the residents.  However, the backgrounds are not always performed in a timely manner, or there are new criminal issues that show up once the staff member is hired, or the report is missing key information from other states or countries.  Then there are the staff that had never been caught abusing before but lacked the supervision of the staff and their actions which fostered an environment for those with a propensity to attempt sexual abuse.

Residents need to be properly assessed, and then the staff needs to be well trained then supervised by protective management to assure the safety of all the residents.  Minnesota is a one person consent video state which means that you can place a hidden camera in the room of a resident.   The room in an assisted living facility is a private space just like an apartment in any other building and the resident can have a hidden camera if the resident and/or their legal representative consents to the recording.

Assisted Living Sexual Assault Reporting

Pursuant to Minn. Statute 144.7065, Subd. 7, potential criminal events, events reportable under this subdivision are:

(1) any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed health care provider;
(2) abduction of a patient of any age;
(3) sexual assault on a patient within or on the grounds of a facility; and
(4) death or serious injury of a patient or staff member resulting from a physical assault that occurs within or on the grounds of a facility.

In addition to the reporting requirements for the facility you should also report any sexual abuse to the local police department and the Minnesota Department of Health Office of Health Facility Complaint, OHFC.  See the attached for more information about reporting elder abuse and neglect.

If you have questions about sexual abuse in a assisted living facility or other elder provider or nursing home or other elder abuse and neglect issues contact Kenneth LaBore for a free consultation.  There is no fee unless there is a verdict or settlement offer from the wrongdoer.  Mr. LaBore can be reached directly at 612-743-9048 or toll free at 1-888-452-6589 or by email at KLaBore@MNnursinghomeneglect.com.

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