How #MeToo impacts home care

How does your home care agency handle complaints of sexual harassment? Here's a six-point strategy

In offices and boardrooms, on retail sales floors, in hair salons and fitness centers and behind fast food restaurant counters across the nation, the #MeToo movement is prompting less tolerance of sexual harassment in the workplace.

But “in the workplace” has a much different connotation for home health, where nurses, therapists, social workers and aides spend much of their workday in someone’s home, in bedrooms and bathrooms, often in close physical contact with patients under circumstances which challenge privacy and personal space boundaries.

When a patient makes inappropriate remarks to an aide who is helping him dress or bathe, how should the agency handle the situation? Should a patient with a serious medical condition or illness, who is perhaps heavily medicated, be held to the same level of accountability as a healthy non-patient in different workplace setting?

What about the elderly husband of a home health patient whose unwelcome squeezes and hugs on each visit make the speech-language therapist feel sexually harassed? Should the agency discharge a patient who needs services because a member of her household is making agency personnel uncomfortable? And what about the patient with a diagnosis of dementia who accuses the nurse of sexually harassing him?

“These are challenging and important issues for home health agencies, and all the legal ramifications and considerations are still being addressed -- but it is important for agencies to understand that they can’t just ignore these situations,” said J’non Giffin, owner and president of Home Health Solutions.

“Agencies need written sexual harassment policies in place. They need to take all complaints seriously, educate all staff and follow their own procedures for handling them and investigate every complaint very carefully,” she said.

“This is true whether it’s a nurse complaining of sexual harassment by her clinical manager, a dementia patient complaining of sexual harassment by the nurse, a therapist complaining of sexual harassment by the patient’s husband, or a home health aide complaining of sexual harassment by a patient. Every case needs to be acknowledged, investigated and documented."

Will complaints increase?

Home care providers may see increasing numbers of sexual harassment complaints from both staff and patients due to two converging elements: more societal willingness to report sexual harassment in the wake of the #MeToo movement and new Medicare requirements which make it easier for both staff and patients to lodge complaints.

“If the #MeToo movement has done nothing else, it has made employees more likely to come forward to report harassment to both your agency and to the Equal Employment Opportunity Commission (EEOC),” home health attorney Robert Markette told home care providers during a recent webinar for WellSky which highlighted some of the legal issues facing home health.

What the CoPs say

At the same time the #MeToo movement was gaining traction on social media in 2017, the Centers for Medicare and Medicaid Services (CMS) was setting in place measures of its own to support more stringent reporting of abuse, suspected abuse and mistreatment in home care.

Under new Conditions of Participation implemented by CMS in 2018, home care providers must provide patients with specific information to make complaints. The name, phone number and contact information for the agency administrator and clinical manager must be provided as well as the state hotline number for reporting issues. Agencies must also be on the lookout for any abuse and mistreatment their patients may be experiencing. Agency personnel and any contracted personnel acting on behalf of the agency are required by §484.50 (e ) to report any abuse, mistreatment or suspected abuse – including any injuries “of unknown source” – to appropriate authorities.

“CMS expects agencies to take all complaints very seriously, whether the complaint is in regard to sexual harassment, discrimination, neglect, misappropriation of patient property, verbal abuse, physical abuse or sexual abuse,” J’non said.

“If a complaint is filed, you’ll need to demonstrate that your agency has taken it seriously, by responding in a respectful and timely manner with a thorough investigation — documenting as you go — and you must respect the right of the person who made the complaint to be free from any retaliation for having filed the complaint.”

A 6-point strategy

Here is a six-point strategy, based on advice from industry experts, to help agencies prepare for and handle sexual harassment complaints.

1. Train managers and supervisors. Your agency’s key leadership needs training to understand what constitutes sexual harassment, how to prevent a work environment where it occurs, how to handle sexual harassment complaints, and the legal considerations.

2. Develop a policy and follow it. Every agency needs a written policy detailing how sexual harassment complaints will be recorded and handled. Specific procedures should be in place and those procedures should be followed carefully for each complaint. One of the crucial points which will be evaluated during any legal proceeding will be how well the agency complied with its own procedures for handling complaints.

3. Take all complaints seriously. Each complaint, no matter its face-value merit, should be treated in the same manner as all others. The allegation may be determined to be completely frivolous, but your agency must be able to show that it was handled no differently than any others. There should be a consistent pattern of treating all complaints according to agency policy and procedures.

4. Investigate thoroughly. All complaints must be investigated according to agency procedure. Take steps to ascertain the validity of every complaint. Review the charges, question the parties involved, interview witnesses and take steps to determine what happened. During the investigation, the agency should not depart in any way from the procedures it has in place for investigation.

5. Respond promptly. At least two responses are required for every complaint lodged. First, the complaint should be acknowledged in a timely and respectful fashion, assuring the person who has made the complaint that it is being taken seriously and investigated. A second timely response is required at the close of the investigation to clearly state the findings and what if any action the agency will take. This is needed even if the investigation did not validate the complaint and no action will be taken.

6. Document it all. Documentation should show who in the agency received sexual harassment training, when the training was provided, and what kind of training was provided by whom. Documentation should also show every complaint lodged, by whom, with dates, and reflect the agency’s response, all investigative steps taken, the findings, and all action taken as a result of the investigation. Even if the investigation determined the harassment charge could not be substantiated and no steps were taken, documentation should note the final outcome.