Other·June 29, 2023

42 CFR § 483.10 (a) Resident Rights The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility, including those specified in this section. (1) A facility must treat each resident with respect and dignity and care for each resident in a manner and in an environment that promotes maintenance or enhancement of his or her quality of life, recognizing each resident’s individuality. The facility must protect and promote the rights of the resident. 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. 22 CCR § 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. 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 5/24/2023, the California Department of Public Health (CDPH) made an unannounced visit to the facility to investigate a facility-reported incident (FRI) about resident-to-resident abuse. The facility failed to protect Resident 1’s right to be free from sexual abuse (any sexual activity that occurs without consent [permission]) by Resident 2. On 5/23/2023 at 5:00 p.m., Certified Nursing Assistant 1 (CNA 1) observed Resident 2 fondling (the act of molesting [touch in a sexual and improper way] someone sexually by touching or caressing) the right breast of Resident 1, who was dependent on staff for care, has severely impaired cognition (relating to the mental process involved in knowing, learning, and understanding things), and lacked the capacity to consent (give permission) to sexual activity. As a result, Resident 1 was subjected to a nonconsensual (when a resident does not agree or cannot agree to participate in an act) sexual act (the act in which one intentionally sexually touches another resident without that resident's consent) by Resident 2 while under the care of the facility. This put the resident at risk of a lifetime physical pain and psychological effects including feelings of hopelessness, helplessness, and humiliation. A review of Resident 1’s admission record indicated the facility originally admitted the resident, a 66-year-old female, on 3/20/2023, and then readmitted the resident on 4/13/2023 with diagnoses including Alzheimer’s disease (a brain disorder that slowly destroys memory and thinking skills) and dementia (impaired ability to remember, think, or make decisions). A review of Resident 1’s Minimum Data Set (MDS, a standardized assessment and care planning tool) dated 3/26/2023 indicated Resident 1 had severely impaired cognition (ability to think and make decisions). The MDS also indicated Resident 1 required extensive two-person assist with transfers, and one-person assistance with all other activities of daily living (ADLs, activities related to personal care) except for eating which Resident 1 only required limited assistance. A review of Resident 1’s progress notes dated 5/23/2023 at 5:00 p.m. indicated that CNA 1 observed Resident 2 with his left hand on Resident 1’s right chest area. A review of Resident 2’s admission record indicated the facility originally admitted the resident on 8/20/2022 and readmitted the resident on 11/4/2022 with diagnoses including dementia, mood disturbance (feelings of distress, sadness or symptoms of depression [persistent feeling of sadness and loss of interest], and anxiety [a feeling of fear, dread, and uneasiness]), mood disorder (a mental health condition that primarily affects your emotional state), and alcoholic cirrhosis of the liver (liver damage caused by heavy use of alcohol). A review of Resident 2’s MDS dated 2/26/2023 indicated Resident 2 had severely impaired cognition (ability to think and make decisions). The MDS also indicated Resident 2 required extensive one person assistance with dressing and personal hygiene; one person assistance with toilet use; and supervision with all other ADLs. A review of Resident 2’s progress notes dated 5/23/2023 at 5:00 p.m. indicated that CNA 1 observed Resident 2 with his left hand on Resident 1’s right chest area. The note further indicated that CNA 1 “caught [Resident 2’s] attention and he removed his hand quickly.” During a concurrent observation and interview with CNA 1 on 5/24/2023 at 3:20 p.m., CNA 1 stated that on 5/23/2023 at approximately 5:00 p.m., she observed Resident 1 and Resident 2 in the common area. CNA 1 stated she was closely behind both residents, approximately inches away, as Resident 1 and Resident 2 were at the time sitting next to one another. CNA 1 stated she then saw Resident 2’s left hand touching Resident 1’s right breast. CNA 1 demonstrated moving her hand in a circular motion mimicking Resident 2’s hand movement. CNA 1 stated she immediately told Resident 2 to stop. CNA 1 stated that Resident 2 then began screaming at CNA 1 saying “Are you stupid?” CNA 1 stated that she immediately reported the incident to the Charge Nurse (CN). CNA 1 stated she knew she had to immediately report the incident because it was resident to resident abuse. CNA 1 stated that it was wrong that Resident 2 was touching Resident 1’s right breast because Resident 2 was touching a private part of Resident 1’s body. During an interview with Resident 2 on 5/24/2023 at 4:40 p.m., Resident 2 stated he does not remember the incident on 5/23/2023 where he touched Resident 1’s breast. During an attempted interview with Resident 1 on 5/24/2023 at 5:30 p.m., Resident 1 was unable to answer questions. During an interview with Resident 1’s Psychiatric (a branch of medicine that deals with mental, emotional, or behavioral disorders) Physician (MD 2) on 5/25/2023 at 12:23 p.m., MD 2 was asked if Resident 1 had the capacity to consent to sexual activity. MD 2 stated “no, absolutely not.” MD 2 stated that both Resident 1 and Resident 2 are demented (a severe mental illness where in a resident is unable to think or act clearly). During an interview on 5/25/2023 at 12:58 p.m., CNA 1 was asked if the incident on 5/23/2023 where in Resident 2 placed his left hand on Resident 1’s right breast appeared accidental or intentional. CNA 1 stated that from what she saw, it looked like Resident 2 intentionally put his right hand on Resident 1’s left breast. CNA 1 stated that it appeared that Resident 2 wanted to put his hand on Resident 1’s breast. During an interview on 5/25/2023 at 1:55 p.m., the Director of Nursing (DON) was asked if the incident on 5/23/2023 wherein Resident 2 touched Resident 1’s breast was accidental or intentional, the DON stated that it was not an accident. The DON stated that on 5//23/2023, when Resident 2 touched Resident 1’s breast, that act was a “deliberate action.” During an interview on 5/25/2023 at 4:21 p.m., the administrator (ADM) stated she reported the incident that occurred on 5/23/2023 where in Resident 2 touched Resident 1’s breast to the state survey agency (SSA) because she considered it “sexual abuse.” The ADM stated Resident 2 touching Resident 1’s breast was not appropriate. The ADM stated Resident 2 putting his hand on Resident 1’s breast on 5/23/2023 was not an accident because Resident 2 kept his hand on Resident 1’s breast. During an interview on 5/27/2023 at 2:10 p.m., the DON stated she does not see why it was an issue that Resident 2 was touching Resident 1’s breast because there was “no harm” to Resident 1. The DON was asked, as a woman with intact cognition, would the DON be affected if a man fondled her breast without consent, the DON stated, “it depends.” A review of the facility’s policy and procedure titled “Abuse and Crime Prevention and Reporting” last revised on 10/11/2022 indicated that the purpose of the facility’s policy was to ensure that resident rights are protected from abuse. The facility failed to protect Resident 1’s right to be free from sexual abuse by Resident 2. On 5/23/2023 at 5:00 p.m., CNA 1 observed Resident 2 fondling the right breast of Resident 1, who was dependent on staff for care, has severely impaired cognition, and lacked the capacity to consent to sexual activity. As a result, Resident 1 was subjected to a nonconsensual sexual act by Resident 2 while under the care of the facility. This put the resident at risk of a 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.