Health inspection·September 2, 2022

The following reflects the findings of the California Department of Public Health during the investigation of: Entity Reported Incident # CA00782007 and Complaint # CA00782832 Event ID: LGUE11 Representing the Department, HFEN # 37686 and HFEN # 34432 State Citation A was written F600 §483.12 Freedom from Abuse, Neglect, and Exploitation The resident has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation as defined in this subpart. This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident's medical symptoms. §483.12(a) The facility must- §483.12(a)(1) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. Title 22 § 72315. Nursing Service - Patient Care (b) Each patient shall be treated as individual with dignity and respect and shall not be subjected to verbal or physical abuse of any kind. Title 22 § 72523. Patient Care Policies and Procedures (a) Written patient care policies and procedures shall be established and implemented to ensure that patient related goals and facility objectives are achieved. Title 22 § 72527. Patient's Rights (a) Patient have the rights enumerated in this section and the facility shall ensure that these rights are not violated. The facility shall establish and implement written policies and procedures which include these rights and shall make a copy of these policies available to the patient and to any representative of the patient. The policies shall be accessible to the public upon request. Patient shall have the right: (10) To be free from mental and physical abuse. On 4/25/22, an unannounced visit was conducted at the skilled nursing facility to investigate an entity reported incident and a complaint regarding Resident Abuse. Based on interview and record review, the facility failed to implement its abuse prevention policy and procedure by failing to: 1) Prevent Resident 1 from being sexually abused by Certified Nursing Assistant A (CNA A). 2) Protect Resident 1 from sexual abuse and mental abuse. Review of Resident 1's medical record indicated she was admitted to the facility on 10/26/11 and had the diagnoses of dementia (mental disorder caused by brain disease or injury), muscle weakness, and major depressive disorder (mood disorder that causes a persistent feeling of sadness and loss of interest). Review of Resident 1's Minimum Data Set (MDS, an assessment tool), dated 3/3/22, indicated she had a brief interview for mental status (BIMS) score of 10 (a BIMS score of 8 to 12 indicates moderate cognitive impairment). The MDS indicated Resident 1 was able to understand others and able to make herself understood. Review of Resident 1's SBAR (Situation, Background, Assessment, Recommendation) Communication Form & Progress Note, dated 4/23/22, indicated around 3:00 a.m., "Inside [Resident 1's room], this writer noted [CNA A] on top of resident with his pants down. This writer confronted him, and noted he had a look of shock on his face. He put his pants back on, got off the resident and kept repeating 'I'm sorry, I'm sorry,' to this writer. CNA was immediately separated from the resident. Resident mentioned this was the second time it happened to her. Resident verbally used the word 'rape' when discussing the situation." The SBAR Communication Form & Progress Note further indicated the police were contacted and Resident 1 was sent to the acute hospital. Review of Resident 1's Nurses Notes, dated 4/25/22, indicated Resident 1 remembered being kissed by a guy and stated, "he wanted to have sex with me but I told him no." Review of Resident 1's Social Service Note, dated 4/25/22, indicated Resident 1 mentioned, "There was a guy who got on [top] of her the other day. Resident said that she told the guy that she will scream if he will not get out off of her, when the LN [licensed nurse] came in to the room and the guy pulled up his pants, took off and flew. Resident verbalized, 'I am innocent.'" Review of another Social Service Note, dated 4/25/22, indicated social services reached out to Resident 1's responsible party (RP, person designated to make decisions on behalf of the resident) and notified the RP that Resident 1 "would like to be moved to a different facility because she was afraid that the guy will come back since he knew where the resident lives." The Social Service Note indicated Resident 1's RP declined to refer Resident 1 to a different facility. During an interview with Resident 1 on 4/25/22 at 3:40 p.m., Resident 1 stated someone woke her up and started feeling her breast. Resident 1 stated she said, "What are you doing?", then told him to leave her alone before she screams. Resident 1 stated it made her angry that he would "do that to people who can't walk." Resident 1 stated she was not sure if she felt safe in the facility. Resident 1 further stated that in the past, the "same guy" rubbed her breast and tried to get in bed with her, but she did not tell anyone. Resident 1 stated, "Why do I always get picked on?" Review of Resident 1's IDT (interdisciplinary team, staff from different disciplines who work together to plan and provide resident care) Notes, dated 4/28/22 indicated, "Resident appears to remember bits and pieces of the incident and there was an episode when she stated that she wants to move out because the perpetrator might come back to the facility. Provided emotional support and reassurance and informed her that SJPD [San Jose Police Department] has arrested that person." During an interview with licensed vocational nurse B (LVN B) on 5/24/22 at 7:05 a.m., LVN B confirmed he was the one who witnessed the incident between CNA A and Resident 1 on 4/23/22. LVN B stated he was doing rounds (checking on residents) at 3:00 a.m. and saw CNA A with his pants down on top of Resident 1 in the resident's bed. LVN B stated, "I think he was kissing her, but don't know for sure." LVN B further stated, "I think I saw [CNA A's] buttocks exposed," but he was not sure because it was dark. LVN B stated he knocked on the door to get CNA A's attention, then with a look of shock on his face, CNA A pulled his pants up and started to say, "I'm sorry. I don't know what came over me." LVN B stated CNA A begged him not to say anything about the incident and, "At one point he got on his knees and begged me not to say anything." LVN B stated when he talked to Resident 1 about what happened, she stated, "That [expletive]. He was kissing me." LVN B stated he called the police and from what he understood, CNA A was in police custody. LVN B stated what CNA A did to Resident 1 was sexual abuse. Review of Resident 1's psychiatry notes, dated 6/17/22 indicated, "Pt [patient] with concerns for wanting to go home. Unable to tell me where 'home' is. She clarifies that she 'just wants to leave this place.' Stating she has a black cloud hanging over her and wants to run from it. Reporting that she has feelings of uncontrollable sadness and crying spells...Per facility reports, Pt was involved in possible sexual assault by a caretaker - caretaker was found on top of patient with pants off. Facility staff reports that the client has been having the same feelings of wanting to go home even before this event occurred, but to a less frequent extent ...Per [director of nursing (DON)], Pt's complaints of wanting to go home seem to have increased since this event." Review of the police department's report of the incident between CNA A and Resident 1, released 7/1/22 indicated, "On 4/23/2022 at approximately 0300 hours [3:00 a.m.], an alleged sexual assault, sexual battery and elder abuse occurred...The arrestee entered the victim's room, got into the bed with the victim, and began to kiss her in the mouth. The victim woke up and told the arrestee to get out of the room or else she was going to yell out 'rape.' The arrestee had his pants down to his knees and got on top of the victim as if he was straddling her. The arrestee also touched the victim['s] breasts. The arrestee did not stop until he saw the witness. The arrestee was identified, taken into custody, and later booked into the...County Jail for the above charges." The facility's undated investigation summary of the incident between CNA A and Resident 1 was reviewed. The investigation summary indicated, "On 4/23/22, at around 3AM, the Station 3 Charge Nurse [LVN B] found [CNA A] on top of [Resident 1] with his pants down ...Licensed nurse instructed [CNA A] to go home, but [CNA A] was refusing to leave the building and kept on begging the charge nurse not to report." The investigation summary indicated that during an interview conducted by the DON on 4/23/22 at 3:30 p.m., Resident 1 stated the hospital did "multiple tests because the guy kissed her." The investigation summary indicated that during an interview conducted by the DON on 4/25/22 at 8:15 a.m., Resident 1 indicated she remembered being "kissed by a guy" and that "he wanted to have sex with me, but I told him no." The investigation summary indicated CNA A "was arrested and currently in jail." The investigation summary indicated, "IDT concluded that incident occurred as witnessed." Review of the facility's "Policy and Procedure on Abuse Prevention and Reporting," revised 4/23/20 indicated, "It is the policy of [facility name] that each resident shall be free from any form of abuse." The policy further indicated, "Sexual abuse is non-consensual sexual contact of any type with a resident ...It includes, but is not limited to: Unwanted intimate touching of any kind, especially of breasts or perineal area [genital area]; All types of sexual assault or battery, such as rape, sodomy, and coerced nudity ..." The facility failed to implement its abuse prevention policy and procedure by failing to: 1) Prevent Resident 1 from being sexually abused by Certified Nursing Assistant A (CNA A). 2) Protect Resident 1 from sexual abuse and mental abuse. Resident 1 alleged that CNA A sexually assaulted (unwanted sexual contact, including kissing and touching) her when CNA A was found inside Resident 1's room on 4/23/22 at approximately 3:00 a.m. with his pants down straddling on top of Resident 1 on her bed. As a result, Resident 1 has experienced uncontrollable sadness and crying spells, has expressed an increasing desire to return home, and has indicated she was not sure if she felt safe at the facility. The above violations presented either imminent danger that death or serious harm would result or a substantial probability that death or serious physical harm would result to Resident 1, and is a Class A citation.