Texas ICF/IID Sexual Rights, Standards and Surveyors

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The ICF/IID programs have always walked a thin line between sexual rights, standards, and surveyors in the state of Texas.  There was a time, not too long ago, when the prevailing view was that any sexual activity in the ICF/IID setting was wrong and had to be reported immediately.  So strict was the view on reporting, that some facilities received deficient practice citations for failing to report something as simple as one individual (client) touching another individual on the outside of his or her clothing.  During this time period a provider could count on seeing a surveyor within a few days of a report being made dealing with sexual conduct.  It did not matter if the incident could never have happened, happened "a long time ago", or whether the incident included sexual intercourse or simply touching in an area deemed to be a sexual nature.  The general rule of thumb was if it happened, you reported it and got ready because surveyors were certainly on their way to investigate which usually means the equivalent of a mini-survey being conducted.

Some of those views have changed in recent years - maybe.  I say maybe because I recently attended a training that was conducted by the state.  This particular training had three sections dealing with things like "Client Rights," "Life Safety Code Information," and "Sexual Rights."  All three sections were excellent as any Texas DADS (Department of Aging and Disability Services) training usually ends up being.  Each presenter was professional and provided great hand-out material....except for the trainer who conducted the "Sexual Rights" training.  No material was given for that segment of the training.  I left feeling like this oversight of training material was likely intentional on the part of DADS in an attempt to avoid being trapped by their own documentation at some later date during potential debate between a provider and a surveyor. 

Regardless of the intention of the training, the fact was stressed that people living in ICF/IID settings have the right to have sex.  They have the right to sexual relationships and the right also to be protected from sexual misconduct or abuse.  The federal standards addresses sex indirectly under the guidelines for specific tags.  For example W223 deals with social development.  The guidelines indicates that "Assessments may address family supports and relationships, sexual awareness and sexuality, friendships, social awareness, social skills and social interests." (Link to Federal Standards) W340 deals with training individuals on their hygiene and health needs, but also includes guidelines for sexual activities "Based upon individual training needs, the nursing staff provides training to individuals in areas such as medications, family planning, prevention of sexually transmitted diseases..."  In the area of protections, W127 addresses this issue and under the guidelines indicates "Sexual abuse includes any incident where a client is coerced or manipulated to participate in any form of sexual activity for which the client did not give affirmative permission (or gave affirmative permission without the attendant understanding required to give permission) or sexual assault against a client who is unable to defend him/herself."

While the federal standards insist that individuals be protected from sexual abuse, it is clear that sexual development is part of the accepted standards.  Texas code closely resembles the federal standards which indicate that the difference in a sexual relationship and an abusive sexual relationship hinges on the words within W127.  Specifically if the client "is coerced or manipulated" or the client "did not give affirmative permission" or "sexual assault against a client who is unable to defend him/herself" then it becomes sexual abuse.   Regardless of the standards, the fact is once you implement a program to teach appropriate sexual relationships for social development then you face the possibility that people living in the ICF/IID setting will want to explore those possible relationships. 

With the knowledge that clients living in the ICF/IID have sexual rights, that the standards indicate you should be teaching social and safe sexual relationship skills, and the fact that you know you will see the surveyors sooner or later, how do you balance all three?  The fact is unless you have a strong program, there is a good chance that you will have a surveyor write deficient practice and possibly even a failure to report tag during your annual survey.  However, with a strong program you can defend your client's right to sexual relationships while protecting them from sexual abuse.  Here's some pointers on how to do this:

1.  Conduct sexual assessments - find out what the client knows about sexual relationships.  While it is a right of individuals to have sexual relationships, it is still your responsibility to ensure they are safe, know about sexual diseases, and have the opportunity to practice safe sex.

2.  Abuse - regardless of what assessments you conduct, sex is never allowed between staff and clients, between clients who are unable to indicate they want to have sex, and in any case where one individual does not want to have sex - even if that individual changes his or her mind after having sexual relationships.

3.  Implement Programming - have programs based on the individual's level of understanding-especially individuals who have expressed an interest in sexual relationships.   

You can do all the above steps, feel like you have a strong program, and still face a surveyor who has a different view.  In the event that you face a surveyor who indicates that an individual cannot give consent, does not understand, or is unable to have sex for some other reason, you must be prepared.  You must first defend your position - why does the IDTeam feel this person can have sex, has the IDTeam addressed it, are your assessments in place, does the person really have the ability and desire to have sexual relationships?  If the answer to all these questions is yes, then explain that to the surveyor.  If the surveyor still insist that you are out of compliance, then you could contact the program manager for your region (in Texas), or you could consider doing an IDR (Informal Dispute Resolution) once the tags arrive.  

Finally, regarding when to call a sexual incident in to state can be summed up in one simple rule:  If you suspect, are in doubt, or know it is sexual abuse, call it in.   From my own point-of-view, I will tell you to go beyond what the State of Texas Standards say.  In the guide for reporting, it states that in a "client to client" sexual incident you should report it to DADS only.  However, in a "staff to client" sexual incident or abuse you should report it to DFPS (Department of Family and Protective Services).  In cases where you have a "client-to-client" sexual abuse, go ahead and call it in to DFPS and DADS.  Recently I was with a facility that reported a "client-to-client" sexual abuse case to DADS only.  The facility received a citation at the annual survey for failure to report to DFPS- the view was that the incident could have happened due to "Neglect" on the part of staff.  Based on that deficient practice, if you decide to call in a "client-to-client" sexual abuse, I would suggest you consider it possible neglect and call DFPS as well.  

Hopefully, you will have solid assessments, IDTeam reviews, and the implementation of the standards in such a way that you will not have problems.  However, if you have problems, then consider reviewing your process or contacting someone to help like me. (My QIDP).