Reply With QuoteThe man was a retired college professor and author who loved University of Iowa sports. He had dementia, colon cancer and arthritis.
Two documents filed with the state described him as “sexually assertive.” Etter, 52, called him “a ladies’ man,” adding, “I never thought he was inappropriate, just very friendly.” She said his family, including two daughters and three sons, liked having him at Windmill Manor because it was convenient for visits.
The woman was a former school district secretary who liked to garden. She was admitted to Windmill Manor in early 2009. Her husband lived nearby. Her son, now 59, had her power of attorney and visited more often than her husband, Etter said.
The woman’s dementia was more severe than that of her male friend. One state document said her “behavioral issues” included “physical aggression, yelling, refusing medications, and pinching and hitting staff.” A care plan devised by the nursing staff suggested soothing her by chatting and offering Oreo cookies.
The day of the November incident, Etter informed Drobot, then called one of the man’s daughters and the woman’s son and told them what had happened. The daughter was worried her father would be kicked out of the facility. Etter told her the sexual encounter reflected “a normal human need,” and there was no plan for him to leave.
Iowa law requires nursing homes to notify the state Department of Inspections and Appeals of potential physical or sexual abuse. Windmill Manor had a similar written policy. No such notification was made in this case because Drobot concluded there was no evidence of force or that the couple actually had intercourse.
Windmill Manor nevertheless took steps to discourage the man, including checking on him every 15 minutes. Etter said the periodic checks ended after a week because she didn’t have sufficient staff. Nurses hadn’t had much, if any, training in dealing with resident sex, Etter said. A few training sessions followed the November incident.
The lack of such training is widespread, said Andrew Rosenzweig, a geriatric psychiatrist who works with dozens of elderly care facilities. Untrained caregivers tend to rely on their own religious, ethnic and other personal beliefs to decide what’s right for residents, he said. A 2012 study by two Kansas State University researchers found sex among nursing home residents is often viewed “as a behavior problem rather than an indication of an unmet need.”
Greg Crist, a spokesman for the American Health Care Association, an industry trade group, said the organization offers no formal training or guidelines for dealing with elderly sexuality, relying on individual homes to respect the rights and needs of residents on a case-by-case basis.
“These are institutions that under Medicaid cuts are trying to provide basic service,” said Mark Lachs, professor of medicine at the Weill Cornell Medical College in New York City. “Sexuality is probably not first on their list of basics.”
Early on the evening of Christmas, two nurses approached nurse Gourley to report they’d seen the man and woman engaged in intercourse in the man’s room, according to documents filed with the Iowa Board of Nursing Home Administrators. The nurses, who weren’t named in the filings, said the man had an erection and was standing behind the woman, who was naked on all fours on the bed. One nurse described the man as “going to town.”
As Gourley entered the room, she saw the man pulling up his pants. When she and another nurse tried to remove the woman from the room, she screamed and bit and kicked them.
A nurse examined the woman. Her vaginal area appeared reddened and she had bruises on her lower shins. Gourley called Etter, who was home with holiday company. Etter called Drobot, the administrator, and later contacted the families of the man and the woman.
She told the woman’s son that his mother had had intercourse and asked if he wanted her examined at a hospital. He declined because he thought it had been “a mutual sexual act,” according to testimony the son gave the state. The son didn’t tell his father what had happened. Etter told the man’s daughter only that he’d been caught naked again with the woman, according to regulatory filings.
It was up to Drobot to decide whether to notify state regulators. He’d never faced such a decision before. While there was little doubt that the demented couple had had intercourse, Drobot, whose formal training is in health administration and sociology, had to determine whether they had the capacity to consent to it. He wasn’t required to report consensual sex if there were no physical injuries or other threats to either resident’s safety.
Federal and state laws require elderly care facilities to respect residents’ rights to privacy and safety. Married couples in Iowa and 17 other states have legal rights to share rooms or have conjugal visits; Colorado goes as far as to allow “private consensual activity” without stipulating a couple be married, according to the Long Term Care Resource Center at the University of Minnesota.
Many facilities broadly believe residents have the right to anything they’d be guaranteed outside the facility, as long as it doesn’t impinge on the rights or safety of others, AHCA spokesman Crist said.
Some facilities, such as the Hebrew Home at Riverdale, New York, presume that residents with dementia have the capacity to decide whether to have sex. The 870-resident home has had a written policy on sexual expression since 1995.
“Yes, we need to make Solomon’s decisions at times, but we need to err on the side of what the resident wants,” said Robin Dessel, the Hebrew Home’s sexual rights educator. “Relationships are totally personal matters of the heart.”
Laws and guidelines on how to make such decisions vary widely, where they exist at all, according to experts on elderly sex. That’s partly because each case must be weighed individually, said Lachs of the Weill Cornell Medical College.
Someone with dementia who lacks the clear-headedness to parcel out her estate might still be able to decide whether to become sexually involved. Said Lachs: “‘Do you want to have sex with this person?’ One could argue that requires very little capacity.”
“In dementia, especially of Alzheimer’s type, the continuum constantly changes,” said Ed McMahon, national director of quality for Golden Living, a Plano, Texas, company that operates more than 300 nursing homes. “A person can be more high-functioning in the morning than they are in the evening.”
After reviewing state regulations, Drobot concluded he didn’t need to report the Christmas episode because there was no injury or evidence of force. He also thought the woman was aggressive and vocal enough that she would have made it clear if she were unwilling, state documents show.
Margo Schilling, an expert on geriatric medicine at the University of Iowa Hospitals and Clinics, reviewed the Christmas incident as part of her duties as an outside adviser to Windmill Manor. Schilling, who declined to be interviewed for this story, consulted a psychiatrist and they concluded that “patients with dementia can still have the ability to consent,” so the relationship was “okay,” according to a state document.
Drobot didn’t report the incident. Windmill Manor still took steps to avoid more sexual encounters between the two. These included keeping them apart and prescribing drugs to curb the man’s sexual urges. No more sexual episodes were documented.
In early 2010, Inspections and Appeals investigators were looking into another matter at Windmill Manor when they heard about the two incidents. Investigators then spent about two weeks interviewing Drobot and his staff.
On March 12, an official at Inspections and Appeals called Drobot. The official said that, because it had failed to protect the woman from the man, Windmill Manor was in “immediate jeopardy” of being disqualified from caring for residents whose stays were underwritten by Medicaid or Medicare. That amounted to a death threat because the government programs accounted for most of Windmill Manor’s revenue.
The home immediately acted to have the man discharged. He left Windmill Manor on March 17 for another facility. One of his daughters cried because she now had to drive almost two hours to visit her father, according to documents filed with the state.
Within a week, both Drobot and Etter were fired. The reasons weren’t made public. Six weeks later, the Department of Inspections and Appeals concluded the woman had been “sexually assaulted” and Windmill Manor had failed to report it. The agency fined the home $47,000. The home later agreed to pay a $14,500 fine without admitting to wrongdoing.
The woman died in September 2010 at another facility. Hours before her death, her son told his father for the first time about the Christmas incident. The woman’s husband told her he forgave her and “there was nothing she could have done,” according to a lawsuit filed by the woman’s family in January 2011.
The lawsuit said the woman had been raped and that Etter, Windmill Manor and its corporate affiliate, RFMS, were responsible. The defendants’ lawyers responded that the woman had engaged in sex voluntarily. For more than a year, arguments in the case focused less on whether a rape occurred than whether RFMS could be held liable. Attorneys for both sides declined to comment.
The man died in December 2010.
Etter was removed as a defendant in the rape lawsuit in 2012. By that time, she had lost her car and the home she was renting. The Iowa Board of Nursing had revoked her nursing license, concluding that she had failed to provide adequate care for the woman and man at Windmill Manor. The board also found that she had not accurately reported the sexual episodes in resident records and to the families. Separately, Etter was acquitted of a criminal charge of interfering with a state investigation.
After two decades as a nurse, Etter didn’t appear at a hearing about the future of her Iowa license because she was depressed, she said.
“I didn’t do my hair, didn’t do my makeup. I felt like everything I believed in fell apart,” she said. She said she followed all state laws and rules and didn’t believe the couple’s sexual relations were forced.
Today, she runs children’s day care out of her home. She said she misses the elderly residents.
“We forget that they’ve had a life,” she said. “I don’t think, unfortunately, they get treated with the dignity they should.”
Ten months after leaving Windmill Manor, Drobot landed a job at an assisted-living facility in Cedar Rapids, Iowa. He left in June 2012 after the Iowa Board of Nursing Home Administrators accused him of professional incompetence, negligence and other infractions related to the sexual incidents at Windmill Manor. The charges appeared in local newspapers. He said he felt publicly “belittled.”
He faced the possibility of losing his administrator’s license. Drobot, several nurses, three experts and a state investigator testified at a July 2012 hearing that was closed to the public. Once again the crucial question was whether the woman had the capacity to consent.
A state investigator and John Doughty, a veteran Iowa nursing home administrator, told the board Drobot should have reported both the November and Christmas encounters. In an interview, Doughty said the woman was “confused to the extent that I don’t feel she was maybe realizing what was happening to her or she thought maybe it was her husband.”
Two other outside experts testified on Drobot’s behalf. Robert Bender, a Des Moines, Iowa, geriatrician, told the board he thought the woman was capable of telling the man if she didn’t want sex, regardless of whether she called the man by her husband’s name.
“The whole area of geriatric sexuality is an area we need to learn a lot more about,” Bender said in an interview. “I don’t think we should be pointing blame when people are expressing themselves in natural ways.”
Law professor Evelyn Tenenbaum of Albany Law School in Albany, New York, who has written about sex among the demented elderly, agreed. After reviewing the Windmill Manor case, she said in an e-mail that the couple’s relationship appeared to be “consensual and beneficial to their well-being. It appears that everyone would have benefited if the nursing home supported the relationship.”
In September, almost three years after the incidents, the Iowa nursing home board essentially acquitted Drobot, saying it couldn’t conclude that he should have reported the incidents or that he’d been incompetent. The board said testimony that the sex was consensual was “more persuasive.” The board cited Drobot for not following proper procedures in discharging the man from Windmill Manor.
Drobot was ordered to pay $572.50 in court fees.
Two months later, the woman’s family settled the rape lawsuit. The terms weren’t disclosed.
Drobot now is the administrator of a pediatric care center in Iowa. When a reporter dropped in on him in May, the animated film “Finding Nemo” was playing on a television in a waiting room filled with colorful toys. Drobot said he, like Etter, misses working with the elderly.
“I guess maybe I sympathized with people whose life has thrown them curveballs,” he said.
