Editor's note: This story has been modified to reflect a clarification to the original story. The clarification:
A policy change at Montana Developmental Center in Boulder does not mean the institution’s policy is to allow consensual sex between clients, state officials clarified Wednesday.
A story in Sunday’s Montana Standard reported a change in policy recognizing that in some situations, adult clients are able to give “affirmative permission,” making a sexual act consensual. But, the officials said, MDC staff are trained not to allow such acts, whether they are consensual or not. The policy change means that if an act is deemed to be consensual, the case will not be reported as a case of abuse, as it would if the act were considered non-consensual.
While such consensual acts occasionally occur, the state officials said, staff are held accountable because they are charged with enforcing a “no-touch” rule at the institution with the aim of preventing the occurrence of all sexual acts between clients, whether they are consensual or not.
HELENA – In late 2015, the Montana Developmental Center in Boulder changed its policy on sexual abuse to change the way the occurrence of consensual sex or sexual contact between clients is reported.
Under the new policies, sex or sexual contact between clients is not reported as abuse if “affirmative permission” is given by the involved clients. Affirmative permission language was not included in the center’s previous policies, last updated in 2013.
The center changed its policies in August to more closely align with new federal guidelines released that year. The center treats and houses people with serious intellectual disabilities who have been determined by a court to pose an imminent risk of serious harm to themselves or others.
While the center is “an institution where we do not want clients having sexual contact with each other, occasionally it does happen,” said Rebecca de Camara, administrator of the Developmental Services Division of the Montana Department of Health and Human Services, which operates the center.
“Where it gets tricky is in evaluating incidents that happen, determining whether or not the activity was consensual.”
De Camara said the center’s policies must align with the federal guidelines because the center is funded with federal money. The center had to draft its own language on what defines affirmative permission because while the federal Centers for Medicare and Medicaid Services added the term to its guidelines, it didn’t provide a definition. Sex or sexual contact between clients and employees still violates the center’s policies. Policies also include Montana’s state laws covering sex crimes such as sexual intercourse without consent, indecent exposure and incest.
“It’s a good addition to our policy,” De Camara said.
The change allows the center and two Department of Justice investigators assigned there to more thoroughly analyze reported sexual abuse, she said.
“I think it’s important because there are ramifications to accusing and substantiating sexual abuse against a client. It becomes part of their record at MDC. When we are in the process of trying to place clients within the community as we’re currently doing so aggressively, that is something that is going to hurt their chances for a community placement.”
Affirmative permission means clients must give consent through words or actions to a specific sexual activity and must have the capacity to consent, according to the center's policies. The client must have sufficient intellectual ability to understand the nature of the sexual activity. The client must also have sufficient psychiatric stability to make a decision to engage in sex or sexual contact.
Those qualities are documented by a review of clinical records and consulting with care providers who are familiar with the client’s abilities.
De Camara said the center contracts with a third-party doctor if it disagrees with the DOJ investigator’s findings after an investigation. The doctor is a psychologist whose specialty is treating people with developmental and intellectual disabilities who are sex offenders.
In 2013, the Legislature passed a bill to establish a DOJ investigator at the center, which has been criticized in the past over sexual interaction between clients, between clients and staff and other abuses, neglect and mistreatment. A bill passed in the 2015 Legislature requires DPHHS to develop a plan to close the center by June 30, 2017. The department must transition most of its residents out of the facility and into community services by Dec. 31.
The center has a committee that writes policies whenever there is a significant change to the federal guidelines. That committee includes the center’s superintendent, clinical director, residential services director, treatment services director, legal counsel and any staff whose work is relevant to the change being made.
Staff members are trained on the new policies; clients are told about changes to policies in some instances. This change was not communicated to clients.
The policies are also used by the two Department of Justice investigators to define what is classified as sexual abuse. The new changes haven’t come up a lot yet in investigations, said Dana Toole, chief of the DOJ’s Children’s Justice Bureau, but they are cases that get a lot of attention.
“Those tend to be the cases that are lightning rods because anything sexual between clients gets people quite concerned, and probably rightfully so,” she said.
Clients do have privacy and privacy rights, though it doesn’t necessarily mean they will be in a private place when they decide to be sexual.
“Human beings that are living with a developmental or intellectual disability are still human beings who have a sexual part of their personality,” Toole said. “The sexual contact that happens in that setting, probably because of the setting, doesn’t necessarily have the same patterns that sexuality does out in the regular world.”
If staff sees clients engaging in sexual activity, they will separate the clients, De Camara said.
“Any time there’s client-to-client sexual contact, they are responsible to report it immediately. If an incident does happen, we always look at whether it was able to happen because of a lack of supervision from our staff.”
Bernadette Franks-Ongoy, executive director of Disability Rights Montana, said she believes lack of adequate supervision from staff is part of the reason the policy was changed at the federal level.
The sex or sexual contact that happens at MDC is opportunistic, she said, and happens when staff are not closely monitoring clients.
“Any kind of sexual activity that takes place in an institution is per se inappropriate,” she said. “That goes against the very nature of what it is some people are supposed to be having treated at the facility.”
De Camara said sometimes sexual contact results from a lack of supervision, and some would be nearly impossible to stop.
“Clients will do things under the table where staff would have to be under the table to be observing it,” she said. “We have to evaluate each incident as it happens.”
If clients have a history of inappropriate sexual contact, their treatment plan will change to allow for things like closer monitoring, De Camara said.
Franks-Ongoy believes the nature of an institution like the center makes sexual contact within its walls inappropriate.
“We certainly appreciate the fact people with disabilities have the right to engage in consensual sexual activity. That being said, we do not believe this is an appropriate policy to be implemented at MDC.”
Disability Rights Montana has supported the closure of MDC and transferring clients to community-based care facilities. Franks-Ongoy said just because some clients have struggled with inappropriate sexual contact doesn’t mean they present a danger to people in those communities.
“One of the things our organization always says is people with disabilities, even with difficult behavior concerns, with appropriate support can be integrated into communities. It’s always with appropriate support.”
Franks-Ongoy said people with disabilities do have the ability to consent and have healthy physical relationships, but in a private home and not in an institution.
A client handbook given to all residents says the center has a strict “no-touch policy” and says “no sexual relations between clients are permitted.”
It continues: “Because many of the people who come here have been physically or sexually abused and may feel very uncomfortable being touched, we ask you to respect other people’s boundaries and not touch other clients or MDC staff.”
Toole said the difference between the policy and the handbook creates issues sometimes because touching isn’t a policy violation, but clients might report it as abuse since they are told not to touch each other. “That gets confusing,” she said.
Clients are also not allowed in other clients’ rooms, according to the handbook.
Franks-Ongoy said clients at MDC often don't report something if they feel they will get in trouble, something that could happen if they think they are breaking a rule.
“They more often than not will not report things because of that fear factor,” she said.
De Camara said clients are told and encouraged to tell staff if anyone violates their personal space. She said the difference in policies and the handbook creates confusion. Personal space is referred to as a “hula-hoop” and clients should report anyone in their hula-hoop, she said.
An official with the federal Centers for Medicare and Medicaid Services, part of the federal Department of Health and Human Services, said the change was made to be "more consistent with current practices and technological advances."
CMS worked with regional offices, state agencies and other stakeholders on input and feedback for these revisions, the official noted in an email.
The revised guidance, effective April 27, 2015, added language defining sexual abuse and clarified those incidents which must be considered sexual abuse and investigated as such, the official said.
The guidance also acknowledged that there may be instances where two consenting adults engage in sexual activity and this would not need to be investigated as sexual abuse as long as there was no coercion or lack of understanding, according to the official.
According to numbers from the DOJ’s investigations, there were 20 substantiated reports of sexual abuse at the center in 2015. That number has yet to be verified by DPHHS. From May 1, 2014, when the investigator started, through the end of that year, there were three substantiated reports.
Most sexual abuse reports are unsubstantiated, Toole said. In an eight-month period in 2014, the center received 159 reports, 59 of which were classified as “information only,” meaning the information in the reports didn’t involve anything that was a violation of policy. In 2015, the center took 1,259 reports, 1,066 of which were information-only; 193 reports resulted in an investigation. Of those, 125 reports were unsubstantiated, three were inconclusive and 65 were substantiated.
The jump in reports received came after a change that stopped MDC from pre-screening some reports. Before November 2014, the center had an internal process that screened out some reports before moving them on to the investigator.
Clients make complaints to staff, who then tell supervisors. The report is documented in their case management system and sent to the DOJ investigator the same day they’re made. The investigators, based out of Helena, also keep an office at MDC and can receive complaints when at MDC.
The DOJ’s investigations are civil, but if criminal activity is found, the investigator takes the report to the Boulder police and the Jefferson County attorney.