Other·September 2, 2022

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 §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. (12) To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care of personal needs. 22 CCR § 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. On 7/20/2022, the California Department of Public Health (CDPH) made an unannounced visit to the facility to conduct a facility-reported incident investigation about resident-to-resident sexual abuse. The facility failed to: 1. Develop and implement its policy and procedure to evaluate a resident’s capacity to consent and engage in sexual acts. 2. Ensure ability to consent to engage in a sexual act was established prior to Resident 1 and Resident 2 partaking in oral sex (sexual activity in which the sexual organ of one partner is stimulated by the mouth). As a result, Resident 1, who had severely impaired cognition (the mental action or process of acquiring knowledge and understanding through thought, experience, and the senses) was subjected to a sexual act by Resident 2 while under the care of the facility. A review of Resident 1's Admission Record indicated Resident 1 was admitted to the facility on 3/10/22 with diagnoses that included metabolic encephalopathy (brain damage or loss of brain function that is caused by an illness or condition), traumatic brain injury, and cognitive communication deficit (an impairment in thought organization, sequencing, attention, memory, planning, problem-solving, and safety awareness). A review of Resident 1's Minimum Data Set (MDS, a standardized assessment and care planning tool) dated 6/17/22 indicated Resident 1 had severely impaired cognition. A review of Resident 1's History and Physical dated 5/3/22 indicated Resident 1 did not have capacity to understand and make decisions. A review of Resident 1's Change in Condition Evaluation dated 7/19/22 indicated facility staff witnessed a female resident (Resident 2) performing an inappropriate sexual act on Resident 1 on the outside patio. A review of Resident 2's Admission Record indicated Resident 2 was admitted to the facility on 7/13/22 with diagnoses that included bipolar disorder (a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks), schizoaffective disorder (a mental disorder in which a person experiences a combination of schizophrenia [serious mental illness that interferes with a person's ability to think clearly, manage emotions, make decisions and relate to others] symptoms, such as hallucinations [hearing, seeing or smelling things that are not there] or delusions [a fixed, false belief in something that is not real or does not exist], and mood disorder symptoms, such as depression [persistent feeling of sadness and loss of interest] or mania [extremely high energy or mood]) , and anxiety (an emotion characterized by feelings of fear, worried thoughts and physical changes like increased blood pressure) disorder. A review of Resident 2's History and Physical exam dated 7/14/22 indicated Resident 2 did not have capacity to understand and make decisions. A review of Resident 2's Change in Condition Evaluation dated 7/19/22 indicated staff witnessed Resident 2 on the ground of the patio, exhibiting inappropriate sexual behavior with another resident (Resident 1). On 7/20/22 at 9:19 a.m., during an interview, Licensed Vocational Nurse 1 (LVN 1) stated on 7/18/22 at around 9:30 a.m., he saw Resident 1 and Resident 2 seated on the outside patio floor. LVN 1 stated he saw Resident 2 performing oral sex on Resident 1. LVN 1 stated he instructed Resident 1 and Resident 2 to stop and separated the two residents. On 7/20/22 at 12:36 p.m., during an interview, the Director of Nursing (DON) stated that Resident 1 was a confused resident with severely impaired cognition. On 7/21/22 at 12:21 p.m., during an interview, the Administrator (ADM) stated he did not believe the incident that took place between Resident 1 and Resident 2 was consensual because the residents did not have capacity. The ADM stated because the residents could not give consent, the inappropriate sexual incident was non-consensual. On 7/21/22 at 2:33 p.m., during an interview, Nurse Practitioner 1 (NP 1) stated that Resident 1 and Resident 2 did not have capacity and therefore could not consent. During an interview with the DON on 7/21/22 at 3:20 p.m., the DON stated the facility did not have a policy in place to establish a resident's ability to consent to sexual acts when first arriving to the facility. During an interview, on 7/22/22 at 3:46 p.m., Resident 1 could not recall the 7/19/22 incident that occurred between him and Resident 2, where Resident 2 was found performing a sexual act on him. Resident 1 further stated that he did not know who Resident 2 was. On 8/3/22 at 11:09 a.m., during a follow up interview, NP 1 stated while Resident 1 may not have the capacity to consent to medical treatment, he (NP 1) believed Resident 1 had the capacity to make needs known, one of which included sex. NP 1 stated that he did not formally establish Resident 1's capacity to consent to sexual acts until three days (7/22/22) after the incident where Resident 2 was found performing a sexual act on Resident 1. A review of the policy and procedure titled, "Abuse Prevention Program," revised 12/2016, indicated the residents of the facility 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, involuntary seclusion, verbal, mental, sexual, or physical abuse, and physical or chemical restraint not required to treat the resident ' s symptoms. The policy and procedure further indicated that it is the policy of the facility to protect their residents from abuse by anyone including, but not necessarily limited to facility staff, other residents, consultants, volunteers, staff from other agencies, family members, legal representatives, friends, visitors or any other individual. The facility failed to: 1. Develop and implement its policy and procedure to evaluate a resident’s capacity to consent and engage in sexual acts. 2. Ensure ability to consent to engage in a sexual act was established prior to Resident 1 and Resident 2 partaking in oral sex. As a result, Resident 1, who had severely impaired cognition was subjected to a sexual act by Resident 2 while under the care of the facility. 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.