Other·October 27, 2023

42 CFR §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. 22 CCR 72527. Patients' Rights. (a) Patients 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. Patients shall have the right: (10) To be free from mental and physical abuse. On 9/23/2023, the California Department of Public Health (CDPH) made an unannounced visit to the facility to investigate three complaints about resident abuse and quality of care. The facility failed to ensure Resident 1 was free from sexual abuse inflicted by Registered Nurse 1 (RN 1). On 5/20/2023 starting at 10:33 p.m., Resident 1, who was unable to communicate needs, was totally dependent on staff for care, and was unable to make decisions or consent to sexual activities, was recorded by a hidden, motion-activated video camera placed by Family Member 1 (FM 1) in front of the foot part of the bed, when RN 1 came to Resident 1's left side of the bed. RN 1 was observed lifting Resident 1's blanket covering the left foot, grasped his genital from his scrub pants (medical uniform with drawstring and/or elastic waists), and proceeded to rub his genital on the resident's left foot.  As a result, Resident 1 was subjected to a non-consensual (without permission) sexual abuse by RN 1 while under the care of the facility. Based on the reasonable person concept (hypothetical [suggested], average person's reaction to the actual circumstances of alleged illegal activities) due to Resident 1's severely impaired cognition (mental action or process of acquiring knowledge and understanding), an individual subjected to sexual abuse has lifetime physical pain and psychological (mental or emotional) effects including feelings of hopelessness, helplessness, and humiliation. A review of Resident 1's Admission Record (face sheet) indicated the facility admitted the resident on 4/1/2023 with diagnoses including anoxic brain damage (occurs when there is a complete loss of oxygen flowing to the brain, often as a result of reduced blood flow), diabetes mellitus (uncontrolled elevated blood sugar), acute respiratory failure (occurs when the lungs cannot release enough oxygen into the blood which prevents the organs from properly functioning), tracheostomy (a surgical procedure which consists of making an opening in the neck in order to place a tube into the windpipe to allow air to enter into the lungs), and history of sudden cardiac arrest (when the heart stops beating). A review of Resident 1's History and Physical (H&P) exam dated 4/3/2023 indicated the resident was unable to make own decisions. A review of Resident 1's Minimum Data Set (MDS - a standardized assessment and care-screening tool) dated 4/5/2023, indicated the resident was cognitively impaired, was unable to communicate, was totally dependent to staff for care including moving in bed, transfers, dressing, and personal hygiene. Resident 1 was dependent on a gastrostomy tube (GT, a tube surgically inserted into the stomach through the abdominal wall to administer food and medications) for feeding.  A review of Resident 1's Change in Condition (COC) Evaluation dated 5/26/2023 documented by RN 4, indicated Resident 1 was involved in an alleged sexual abuse from RN 1. The notes indicated police officers came to the facility and informed RN 4 they had evidence of an alleged abuse. A police officer spoke to RN 1 and took him to the police station. A review of Resident 1's nursing Progress Notes, dated 5/26/2023 and timed at 8:43 p.m., indicated that per RN 4, police officers came to the facility at 6:55 p.m. asking for Resident 1's room and asking if the resident's family were present. At 7 p.m., RN 1 came to the Nursing Station and a police officer questioned him (RN 1) while another police officer requested for RN 1's backpack. RN 1 left the facility with the police officers.  A review of Resident 1's nursing Progress Notes dated 5/26/2023 and timed at 10:15 p.m., indicated the Director of Nursing (DON) with RN 4 spoke to FM 1 who then informed them the sexual abuse occurred on 5/20/2023. A review of Resident 1's nursing Progress Notes, dated 5/26/2023 and timed at 9:19 p.m., indicated RN 4 performed body assessment to Resident 1 and noted no obvious injury. RN 4 notified Resident 1's physician who ordered to transfer Resident 1 to General Acute Care Hospital 1 (GACH 1) for further evaluation due to alleged sexual abuse, but FM 1 refused the transfer and Resident 1 remained at the facility. During an interview, on 9/9/2023 at 12 p.m., FM 1 stated he had a video and a police report that RN 1 sexually abused Resident 1 on 5/20/2023 between 9:30 p.m. and midnight. FM 1 stated that it was not until 5/26/2023 when he saw the video and called the police. FM 1 stated he asked, and RN 4 confirmed RN 1 was working that evening (5/26/2023) during 7 p.m. to 7 a.m. shift., and RN 1 was arrested that same night. FM 1 stated RN 1 was currently out on bail (an amount of money a person, who has been arrested pays to a law court to be freed while waiting for a trial). FM 1 stated Resident 1 would tense up by opening her eyes, moving her mouth, and by having facial twitching (sudden movement) when hearing an unknown male voice. FM 1 stated Resident 1 would relax once reassured by the family's presence. FM 1 stated Resident 1 was discharged to home on 6/12/2023. CDPH requested FM 1 for the video evidence for review and FM 1 stated he would provide it later. On 9/11/2023 at 10:27 a.m., FM 1 emailed CDPH two video recordings dated 5/20/2023 and a police report dated 5/26/2023.  On 9/11/2023 at 10:34 a.m., during a telephone interview, RN 1 stated he was aware of the video recording and had seen them, but he could not comment because the case was under investigation. RN 1 stated he had not been back to work, and his RN license had a court order for practice limitation restricting him from providing direct contact with residents or patients. On 9/11/2023 at 12 noon, during an observation of the first video footage dated 5/20/2023 starting at 10:33 p.m. and lasting 43 seconds (secs) long, indicated the following: At 5 secs - RN 1 approached and stood by Resident 1's left side facing the resident's left foot. RN 1 untied the string of his scrub pants and allowed the lower part of his scrub top to cover the string portion of his scrub pants.  At 10 secs - RN 1 lifted the blanket covering the left foot and begun observing the resident's left foot by opening the left foot heel protector (offloads pressure from the bony prominence of the heel).  At 21 secs - RN 1 moved closer to Resident 1's left side of the bed with his thighs touching the bed and his genitals touching the resident's left foot heel protector. At 27 secs - While looking at the door side of Resident 1's room, RN 1 used his left hand to move the lower part of his scrub top upwards and then placed it back down to cover the string portion of his scrub pants.   At 31 secs - RN 1 stepped back from Resident 1's bed. At 38 secs - RN 1 covered Resident 1's left foot and walked away from the resident's left side of the bed. On 9/11/2023 at 12 noon, during an observation of the second video footage, dated 5/20/2023 starting at 10:34 p.m. and lasting 22 secs long, indicated the following: At 2 secs - RN 1 approached Resident 1's left side of the bed while putting a glove on his right hand. RN 1 stood by the resident's left foot area of the bed.  At 5 secs - RN 1 untied the string of his scrub pants and allowed the lower part of his scrub top to cover the front of his scrub pants covering his genitals. At 10 secs - RN 1 removed the blanket covering Resident 1's left foot and rested the blanket on the resident exposing the lateral side (outer left side) of the heel protector. At 11 secs - RN 1 moved his thighs closer touching the resident's left side of the bed. At 13 secs - RN 1 moved his genitals closer to touch the resident's left heel protector.  At 14 secs - RN 1 lifted the lower part of his scrub top using his left hand and moved closer to Resident 1's left foot. With his left hand, RN 1 grasped his genital while facing the resident's left foot. RN 1's genital was touching the resident's left heel protector. RN 1's blanket covered the inner part of the left heel protector. The lateral side (away from the center) of the left heel protector and RN 1's left hand were left uncovered.   At 16 secs - While RN 1's left hand was doing a grasping motion of his genital, RN 1 moved his left hand with five up and down continuous motions towards Resident 1's left foot.  At 22 secs - The video stopped with RN 1 still standing on Resident 1's left side. A review of Resident 1's Los Angeles Police Department Investigative Report (LAPD-IR) dated 5/26/2023, indicated the report was about a lewd act (intentionally exposing one's private area/s to someone with the intent to abuse, humiliate, degrade, or to gratify one's sexual desire) by a caretaker. The report indicated Resident 1 was the victim and the suspect was RN 1. The suspect used the victim's foot to stroke or rub his own genitals to get sexual arousal and gratification. The report further indicated the victim was incapacitated (disabled, helpless, and powerless) and the suspect was the victim's nurse. The LAPD-IR indicated that on 5/26/2023 at approximately 3:30 p.m., two police officers received a radio call to handle an elder abuse investigation. The LAPD-IR indicated two police officers responded and FM 1 informed them he noticed Resident 1 would grimace (to distort one's face in an expression usually of pain, disgust, or disapproval) every time she would hear a certain male voice later identified as RN 1. The LAPD-IR indicated FM 1 had suspicion that Resident 1 was not receiving the proper care in the facility, and so he placed a cellphone that would start recording when motion was detected in the room. The LAPD-IR indicated FM 1 provided the video recorded on 5/20/2023 between the times of 9:30 p.m. to 11:48 p.m. and the video did not capture the entire incident. On 9/11/2023 at 3:53 p.m., during an interview, the DON stated FM 1 only informed them about RN 1 sexually abusing Resident 1 and did not provide details or the video footage. The DON stated RN 1 did not return to work since 5/26/2023 and she or the Administrator (ADM) did not call RN 1 after the incident, and they were not aware if RN 1 remained arrested. The DON stated the facility was not aware of the status of the investigation and did not follow-up with the detectives.  During an interview, on 9/12/2023 at 6:55 a.m., the ADM stated the facility's Abuse policy and procedures indicated all residents have the right to be free from abuse. During an interview, on 9/12/2023 at 10:28 a.m., the ADM stated on 5/27/2023, Detective 1 (D1) called her (the ADM), and she (the ADM) requested to view the video evidence but was denied because the investigation was ongoing. The ADM stated D1 informed her the case would be assigned to D2 and D3. The ADM stated on 5/30/2023, D2 and D3 visited the facility and requested to speak to the staff who worked on 5/20/2023 and they arranged 6/6/2023 for the detectives to call the facility so all staff could be present during the phone call. The ADM stated D2 and D3 informed her that they will reach out to the ADM once the investigation was done. The ADM stated she did not ask the detectives on how she will receive the police report and she did not clarify on what was the next step to do. The ADM stated they did not report RN 1 to the Board of Registered Nursing because they do not have enough evidence. A review of the facility's Promise to Comply with Anti-Harassment Policy signed and dated by RN 1 on 1/11/2023 indicated, "As an employee, I acknowledge that I have read my employer's policy against harassment. I promise that I will fully comply with all aspects of that policy .... I agree that I will not engage in any conduct that would constitute unlawful harassment of another individual. I also agree to comply with my obligations under the policy to report any sexual harassment immediately to my supervisors." A review of the facility's Abuse Policy Acknowledgement Form signed and dated by RN 1 on 1/11/2023 indicated, "I understand that as an employee of a long-term facility I have a legal responsibility to help assure that all residents in the facility are protected and kept safe from harm, further, that I shall report a known or reasonable suspicion of abuse immediately ..." A review of the facility's policy and procedure titled, "Abuse and Neglect-Clinical Protocol," dated 3/2018 and reviewed on 11/16/2022, indicated, "Abuse is defined as the willful infliction (with intention to cause) of injury, unreasonable confinement, intimidation or punishment with resulting harm, pain, or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychological well-being. Instances of abuse to all residents, irrespective of any mental or physical condition, cause physical harm, pain, or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled using technology. Sexual abuse is defined as non-consensual (without permission) sexual contact of any type with a resident." A review of the facility's policy and procedure titled, "Abuse, Neglect, Exploitation and Misappropriation Prevention Program" dated 4/2021 and reviewed on 11/16/2022 indicated, "Residents have the right to be free from abuse, neglect, misappropriation of resident property, and exploitation. This includes but is not limited to freedom from corporal punishment (physical punishment), involuntary seclusion (isolated or confined to a specific area), verbal, mental, sexual, or physical abuse, and physical or chemical restraint not required to treat the residents' symptoms. Protect residents from abuse, neglect, exploitation, or misappropriation of property by anyone including, but not necessarily limited to: a. facility staff." The facility failed to ensure Resident 1 was free from sexual abuse inflicted by RN 1. On 5/20/2023 starting at 10:33 p.m., Resident 1, who was unable to communicate needs, was totally dependent on staff for care, and was unable to make decisions or consent to sexual activities, was recorded by a hidden, motion-activated video camera placed by FM 1 in front of the foot part of the bed, when RN 1 came to Resident 1's left side of the bed. RN 1 was observed lifting Resident 1's blanket covering the left foot, grasped his genital from his scrub pants, and proceeded to rub his genital on the resident's left foot.  As a result, Resident 1 was subjected to a non-consensual sexual abuse by RN 1 while under the care of the facility. Based on the Reasonable Person Concept due to Resident 1's severely impaired cognition, an individual subjected to sexual abuse has lifetime physical pain and psychological effects including feelings of hopelessness, helplessness, and humiliation. The above violations jointly, separately, or in any combination, presented either imminent danger that death or serious harm would result or a substantial probability that death or serious physical harm would result Resident 1.