Navigating the uncertain legal waters of resident sexuality: residents' rights to sexual expression can create complicated issues for facilities and family members. (Legal Landscape).

Despite the dismay of the general public, sexual activity continues into older age; several studies confirm the presence of continuing sexual activities for older Americans. A study conducted by the National Council on the Aging in 1998 confirmed that 48% of Americans aged 60 and older are sexually active. (1) The Sexuality Survey commissioned by the AARP and Modern Maturity in 1999 found that sexuality plays an important role in the lives of most midlife and older adults. The older population views sexual activities as including kissing or hugging, sexual touching or caressing, and sexual intercourse. (2)

Not surprisingly, sexual thoughts and activities are not left behind when an individual enters a long-term care community. As such, the long-term care professional must navigate the waters that surround these activities in a manner that protects the resident's rights, allows for privacy and dignity, and balances other factors related to persons living in a congregate setting. This article will review some of the issues that might surface when a resident in a long-term care community wants to continue sexual relationships with long-time or new partners. Also, some practical tips will be provided to assist in safe handling of these sensitive issues. If the situations are not handled appropriately, the long-term care community can suffer serious ramifications, including potential legal actions.

When a resident enters a long-term care community, the lifestyle changes can be dramatic. This article will focus on the residents in regulated portions of long-term care communities, as the residents in an independent living area continue to remain functionally independent. However, residents in either an assisted living or nursing facility environment find themselves in a restrictive setting that affects even their most private forms of expression. A resident in a Medicare- and/or Medicaid-certified nursing facility has a number of protected rights, as defined by federal and state law. Resident rights include the right to exercise his or her rights, (3) as well as the right to privacy and confidentiality. (4) The right to privacy extends to the right to meet in private with others, including full visual and auditory privacy. The nursing facility is required to provide care and services to assist a resident to meet the resident's highest practicable physical, mental, and psychosocial well-being. (5) The resi dent-rights protections in combination with the mandate to assist residents in meeting their highest practicable well-being require long-term care professionals to address each resident's needs, including needs related to sexuality.

It is not difficult or complicated to provide privacy to an alert and oriented resident when his or her spouse comes to visit. Most facilities have procedures to allow for privacy between spouses, including "do not enter" signs and other communication tools to ensure that the couple is not unexpectedly interrupted. Sexual-expression issues become much more troubling when those requests come from residents that may not be totally alert and oriented. Many of today's long-term care residents have dementia or other conditions that diminish cognitive abilities. When a resident has diminished cognitive functions, the request for sexual expression with others becomes more problematic.

A basic premise of our legal system is that sexual relations may occur between two consenting adults, which presumes an individual's rationality and competence in the absence of definitive contrary evidence. When diminished cognition is present, what must the long-term care professional consider when addressing the sexual needs of this resident? A resident's right of self-determination becomes problematic when the heal be acting like it's a done deal and we don't have any say in what happens [with slots]," Mr. Cabrera says to hammer home his point. "It's a shame our representatives are being so unresponsive to us."