Failure to Protect Residents from Non-Consensual Sexual Activity
Summary
The facility failed to protect two residents in the Memory Care Unit (MCU) from engaging in sexual activities when neither had the capacity to consent. Resident #1, an elderly female with diagnoses including unspecified dementia, cognitive communication deficit, Alzheimer's disease, and hallucinations, was found performing oral sex on Resident #2. Resident #2, an elderly male with diagnoses including cerebral infarction, vascular dementia, and other cognitive impairments, was also involved in the incident. Both residents were documented as having significant cognitive impairments, with Resident #1 unable to complete a cognitive interview and Resident #2 having a moderate cognitive impairment. The incident was reported by a CNA who found the residents in bed together. Both residents were upset when interrupted, and staff initially believed the interaction was consensual. However, interviews with the Director of Nursing (DON) and the Administrator (ADM) revealed that the incident was not reported to the Health and Human Services Commission (HHSC) because they believed it was consensual. Family members and a Power of Attorney (PPA) expressed concerns, stating that neither resident had the capacity to consent and that the incident was upsetting and potentially traumatic. The facility's policy on abuse and neglect clearly states that each resident has the right to be free from abuse, including non-consensual sexual contact. Despite this, the facility failed to assess the residents' capacity to consent properly and did not report the incident as required. The Immediate Jeopardy (IJ) was identified, and the facility was notified, but the failure to protect the residents from abuse placed them at significant risk.
Removal Plan
- The Medical Director was notified of the Immediate Jeopardy.
- Resident #1 was assessed by ADON with no adverse effects. Resident #2 was discharged from facility. All Full-time, Part-time, PRN and agency staff will be in-serviced prior to working the floor on how to handle residents engaging in a sexual encounters. In-service includes separating residents and informing ED or DON/ADON immediately and IDT meeting will be scheduled. New staff will also be in-serviced during the orientation process prior to resident interactions. All staff currently working the floor have already been in-serviced by RN interim DON.
- Staff will separate residents wanting to engage in sexual encounter until the IDT process is completed and staff have been informed of IDT decision by ED or DON and plan of care is updated. These individuals will be identified based on staff interviews and observations.
- Facility process for residents to have sexual encounter is for staff to inform ED or DON of residents' desire based on interviews or observed behaviors. It will then be brought to the IDT (to include, but not limited to MD, ED, DON, ADON, SW) for them to make a determination of consent and need for further interventions and care plan updates, which will be done as soon as possible but up to three days. Staff made aware on case by case basis based on IDT determination. Facility will determine if needs or choices are changed as identified during quarterly care plan reviews. Staff will be made aware based on care plan. If staff encounter a situation involving residents, they will separate the residents and inform the ED or DON/ADON.
- Train the trainer in-service was given by the Clinical Resource RN and was completed with interim DON and Executive Director related to resident's capacity to consent and the IDT process to determine consensual relationships of residents.
- Summary of IJ and corrective action to be reviewed by QAPI Committee weekly or until substantial compliance established and continue monthly to ensure ongoing compliance.
Penalty
Resources
Below are regulatory guidelines relevant to this citation:
Two residents with dementia, schizoaffective disorder, and major depressive disorder, both with moderately impaired cognition and needing moderate ADL assistance, were found unclothed together in one resident's bed. One resident later stated she did not want sexual activity and did not consent, while the other resident could not recall the encounter. An LVN reported that both residents verbally consented at the time but acknowledged no assessment had been done to determine their capacity to consent to sexual activity. The DON identified the incident as sexual abuse and confirmed that allowing sexual activity without prior capacity assessment was inconsistent with facility policy and that the resident was not protected from sexual abuse.
Two residents reported being physically and verbally abused by a CNA during care. One cognitively intact resident with dementia stated that a male and a female CNA turned the resident violently while providing incontinence care despite the resident’s refusal, that the male CNA hit the resident during the struggle, and that there was swearing by both parties; the resident later identified the female CNA as the caregiver involved that night. Another resident with a history of cerebral infarction and moderate cognitive impairment reported that the same female CNA slapped the resident’s wrist multiple times and grabbed the resident’s glasses. Facility investigations and reports to the State Survey Agency documented that the allegations against the female CNA were substantiated.
The deficiency involves the facility’s failure to conduct a complete and thorough investigation of an alleged incident in which a cognitively impaired resident with dementia was reportedly inappropriately touched and kissed by another resident with multiple psychiatric and neurologic diagnoses in a crowded dining room. An activity worker reported that a third resident alerted him to the inappropriate touching, and he described observing the alleged perpetrating resident touching the other resident’s inner thigh and later seeing him again near the same resident with his hand close to her genital area. Nursing staff documented that the alleged perpetrating resident was observed kissing the same resident on more than one occasion that day. Although the facility ultimately unsubstantiated the allegation, the investigation lacked statements from other residents present, from the resident who initially reported the incident, from the second activity worker who was in the room, and from the alleged perpetrating resident, resulting in an incomplete abuse investigation.
A resident with chronic respiratory failure, schizophrenia, severe cognitive impairment, and total dependence for ADLs was observed with a red abrasion on the forehead that had not been documented in weekly skin assessments or progress notes. Staff had care plan instructions to inspect skin and report changes, but no documentation or investigation of the injury occurred until the next day, when an RN noted a purple abrasion of unknown origin and speculated the resident’s head may have contacted the wall after a room change. A CNA reported not noticing the abrasion, and an LN acknowledged being informed of the injury but failed to document it, assuming another nurse had done so, while administrative nursing staff were unaware of the injury.
A cognitively intact resident with right-sided hemiplegia and recent decline in mobility had an updated care plan and therapy recommendation requiring a stand-up lift and two-person assistance for transfers and ambulation with a rollator and gait belt. Despite this, the resident was assisted to ambulate to the bathroom by a single CNA using only a walker, after the resident reportedly insisted on walking and was told to prove herself by using the walker. While turning to sit on the toilet, the resident fell, was found with the left foot twisted backward, and was later diagnosed with a comminuted bimalleolar ankle fracture that required ORIF surgery. The facility’s investigation confirmed that staff did not follow the resident’s care plan, resulting in neglect.
Staff failed to protect a cognitively intact, independent resident from sexual abuse when a CNA repeatedly entered the resident’s room when the roommate was absent or asleep, hugged the resident, and kissed the resident on the mouth without the resident’s initiation or encouragement. A housekeeper observed the CNA return to the resident’s room, then saw the CNA and the resident in a full hug with the CNA kissing the resident on the mouth through a partially open door, and reported the incident. The resident later reported that these contacts were inappropriate and made the resident uncomfortable, while the CNA admitted to hugging the resident but denied kissing and believed hugging was not inappropriate, despite the facility’s abuse policy defining sexual abuse as any non-consensual sexual contact and requiring immediate reporting of abuse allegations.
Failure to Protect Cognitively Impaired Resident From Sexual Abuse
Penalty
Summary
The facility failed to ensure a resident was free from sexual abuse when two cognitively impaired residents were found unclothed together in one resident's bed without prior assessment of their capacity to consent to sexual activity. One resident had dementia, schizoaffective disorder, and major depressive disorder, with documentation of fluctuating capacity to understand and make decisions and a Minimum Data Set (MDS) indicating moderately impaired cognition and a need for moderate assistance with ADLs. During an interview at her bedside, this resident stated she did not want to engage in sexual activity and did not consent to sexual contact with the other resident. The second resident involved also had dementia, schizoaffective disorder, and major depressive disorder, with an MDS showing moderately impaired cognition and a need for moderate assistance with ADLs. In an interview, he stated he liked women and liked to socialize with women but could not recall whether he engaged in sexual activity with the first resident. An LVN reported observing both residents unclothed in the first resident's bed and stated that, at the time of the incident, both residents verbally consented to sexual activity, but she was not aware of any assessment having been performed to determine either resident's capacity to consent. The DON stated the incident was considered sexual abuse, that it was not the facility's practice to allow sexual activity without appropriate assessment, and that the facility failed to ensure the resident was protected from sexual abuse, contrary to the facility's abuse prevention policy.
Failure to Protect Two Residents From Physical and Verbal Abuse by Nursing Assistant
Penalty
Summary
The facility failed to ensure residents were free from abuse when two residents reported being physically and verbally mistreated by a nursing assistant during care. One resident with dementia but a BIMS score indicating intact cognition reported that on a late evening, two staff members, described as a male and a heavy-set female nursing assistant, attempted to change the resident despite the resident’s refusal. The resident stated that the staff turned the resident violently, that the male staff member hit the resident after a possible altercation, and that both staff and resident were swearing during the incident. The resident identified the female nursing assistant as the person who had provided care that night and later identified the male nursing assistant through the nursing supervisor. The facility’s investigation documentation indicated that the allegation against the female nursing assistant was substantiated, while the male nursing assistant was determined by the facility not to be involved. A second resident with a history of cerebral infarction and a BIMS score indicating moderate cognitive impairment reported that the same female nursing assistant slapped the resident’s wrist three times and then grabbed the resident’s glasses. The resident’s statement and demonstration of the incident were documented in the facility’s investigation, which concluded there was sufficient concern regarding inappropriate physical interaction. The facility’s report to the State Survey Agency documented that the allegation against the female nursing assistant was substantiated and that the allegation was considered substantiated in the facility’s reported incident. The nursing home administrator confirmed these findings during interview.
Plan Of Correction
1. A thorough investigation of allegations of abuse was conducted for Resident R1 and R2. Interviews and witness statements as applicable with other staff and/or residents completed for alleged abuse for Resident R1 and R2. Employee E3, nurse aide, was terminated based on multiple allegations and refusal to provide statement. Employee E4, nurse aide was found to be not involved with Resident R1 based on facility investigation. 2. Facility will ensure that there will be strictly zero tolerance for any resident abuse and neglect. Any allegations of abuse or neglect will be thoroughly investigated. Appropriate corrective action plans will be taken such as disciplinary action/terminations. 3. All staff will be reeducated on abuse/neglect policy and procedures as part of the facility's mandatory abuse and neglect training. All new hires will also be educated on topics of abuse/neglect policy and procedures as part of facility's orientation. 4. The Administrator/Designee will monitor the frequency and pattern of all abuse allegations and follow up investigations. Any areas of non-compliance will be addressed in QAPI for two quarters or until substantial compliance is met.
Incomplete Investigation of Alleged Resident-to-Resident Sexual Abuse
Penalty
Summary
The deficiency involves the facility’s failure to conduct a complete and thorough investigation of an allegation of resident-to-resident sexual abuse involving one resident (R1) out of three reviewed. Facility policy titled “Abuse Investigating and Reporting” (revised 2016) required the Administrator to assign investigations appropriately and ensure prevention of further potential abuse, neglect, exploitation, or mistreatment when an incident or suspected incident is reported. R1 had diagnoses including dysphagia, aphasia, dementia, and cerebral infarction, and was documented as cognitively impaired on the January 2, 2026 MDS. Another resident, R2, had multiple diagnoses including diabetes, seizures, chronic kidney disease, schizoaffective disorder, and frontotemporal neurocognitive disorder, and was documented as awake, alert, and oriented on the February 19, 2026 MDS. On the date of the incident, documentation submitted to the State Survey Agency indicated that a resident (R3) reported that R1 was inappropriately touched in the dining room by R2. An incident report completed by a nurse (E3) stated that an activity worker (E4) reported R2 inappropriately touching R1 in the first-floor dining room and that both residents were immediately separated, with R1 taken back to her second-floor bedroom. E3 was not present for the incident and completed an incident report based on what she was told when she started her shift. E3 performed a full body assessment on R1 and found no bruises or injuries. A statement by activity staff (E4) documented that he witnessed R2 caressing R1’s inner thigh before removing him from the dining room, and a second undated statement from E4 indicated that R3 told him he had witnessed R2 assaulting R1 and that R1 was being groped. In an interview, E4 reported that R1 and R2 were seated near the back wall of the first-floor dining room, with two activity workers present and about 50 residents in the room. E4 stated that R3 called him and told him to remove R2 because R3 saw R2 touching R1 inappropriately, including feeling R1’s thighs and breast and putting his hands in her pants. E4 reported taking R2 to the nursing station and informing a nurse whose name he could not recall, then later observing R2 back in the activity room near R1 with his hand on her inner thigh close to her vagina, after which he again took R2 to the nursing station. A separate incident report by another nurse (E5) documented that R2 had been observed by another resident earlier, was placed at the nursing station for supervision, and later was seen kissing the same female resident (R1) in the same dining room. E5 stated she was told by the activity aide that R2 was witnessed touching and kissing R1 and that R2 returned to the dining room and was again involved in an incident of kissing R1. A nursing note by the 3–11 p.m. nursing supervisor (E6) documented that she was notified by a male staff member that R2 was seen inappropriately touching R1 and that R2 was placed on 1:1 supervision, with the physician notified and an order obtained to send R2 to the emergency room for evaluation. In an interview, E6 reported she was completing an admission when notified that R2 was observed touching R1’s breast area and that, by the time she left her office, the residents had already been separated and R2 placed on 1:1 supervision. The facility’s investigation ultimately unsubstantiated the allegation of resident-to-resident abuse for inappropriate touching, noting that E4 reported seeing R2 caressing R1’s inner thigh while she was wearing blue pants and that he was touching the outside of the pants. Surveyor review of the investigation found that it lacked key elements required for a complete and thorough inquiry. The investigation did not include any statements from residents who were present in the dining room during the alleged incidents. There was no dated, signed interview statement from R3, who initially reported the inappropriate touching. The investigation also did not contain any statement from the second activity worker (E7) who was present in the dining room and giving out snacks at the time of the events, nor any witness statement from R2 regarding the various accounts of his behavior. During interviews with the DON, the Nursing Home Administrator, and the Regional NHA, it was acknowledged that there were no resident witness statements from those present in the dining room, no statement from R3, and no statement from E7 about what he may or may not have witnessed. This incomplete documentation and failure to obtain and include all relevant witness accounts formed the basis of the cited deficiency for failure to conduct a complete and thorough abuse investigation.
Plan Of Correction
Plan of Correction: The facility immediately assessed Resident R1 with no injuries noted. Resident R2 was immediately separated, placed on 1:1 supervision, sent to the hospital for evaluation, and remained on 1:1 supervision until cleared by psychiatry. The provider and responsible party were notified and the incident was reported to the Department of Health. The facility conducted an investigation and interviewed all available witnesses during the investigation. All residents have the potential to be affected by this deficient practice. An abuse and neglect checklist tool will be implemented to ensure all allegations are thoroughly investigated, including obtaining statements from all available witnesses. Education will be provided to staff on abuse/neglect reporting and investigation requirements, including immediate protection of residents and obtaining required witness statements. Administrator or designee will review all abuse investigations for completeness and required documentation. Audits will be conducted weekly x4 weeks, then monthly x3 months. Findings will be reported to the QAPI committee.
Failure to Identify and Document Forehead Abrasion of Nonverbal Resident
Penalty
Summary
The deficiency involves the facility’s failure to identify, monitor, and respond to an injury of unknown origin on a resident’s forehead. The resident had chronic respiratory failure, schizophrenia, was nonverbal, rarely communicated, and was assessed as having severely impaired cognition, requiring total assistance for all ADLs and having no documented behaviors. The care plan directed staff to inspect the resident’s skin weekly and as needed, observing for redness, open areas, scratches, cuts, and bruises, and to report any changes to the nurse. Weekly skin notes for the period reviewed did not document any abrasion or bruise to the forehead. On the first day of the annual survey, the resident was observed in bed with a red abrasion on the right side of the forehead measuring approximately 0.5 cm by 2 cm. When asked if he had a fall, the resident shook his head side to side indicating no. The resident’s progress notes contained no evidence that staff had identified the forehead abrasion or investigated its origin until the following day, when a note documented a purple abrasion on the right forehead measuring 0.3 cm by 2.5 cm by 0 cm, with the resident unable to describe how it occurred. Staff reported no known event, and the note suggested the resident’s head may have hit the wall during cares after a recent room change that placed the bed against the wall, with a fall mat on the left side of the bed. A CNA who provided care reported she had not noticed the abrasion/redness and stated that any new skin issue should be reported to the nurse and that staff were required to write a statement for injuries such as bruises or skin tears. An LN reported being told by the night nurse that the resident had an abrasion but did not document it, assuming the night nurse had done so. An administrative nurse stated she was not aware of the abrasion and that the nurse should have reported, assessed, and completed risk management and a root cause analysis for the abrasion.
Failure to Follow Updated Transfer Plan Resulting in Resident Ankle Fracture
Penalty
Summary
The deficiency involves the facility’s failure to protect a resident from neglect by not following the resident’s updated care plan requiring two-person assistance and use of a mechanical stand-up lift for transfers. The resident had a history of right-sided hemiplegia/hemiparesis following a stroke but was documented as cognitively intact with a BIMS score of 15. A quarterly MDS showed the resident had previously been independent with ADLs, including transfers, ambulation, and toileting, and the initial care plan reflected independence with a rollator walker for transfers and ambulation. Subsequently, therapy documentation showed a decline in the resident’s functional mobility and increased left hip pain. On reevaluation, therapy noted the resident had recently refused attempts to stand and requested use of a standing lift for transfers. A therapy progress note documented that the resident remained in bed and declined to attempt standing, and the therapist downgraded the resident’s assistance level from independence with a rollator walker to requiring a stand-up lift due to the inability to assess safe ambulation and transfers. The care plan was updated to require use of a stand-up lift with assistance of two staff members for transfers and ambulation with a roller walker and gait belt with assistance of two staff members. Despite these updated care plan requirements, a nursing progress note documented that the resident experienced a witnessed fall in the bathroom while ambulating with one nurse aide using a roller walker. The resident fell while turning to sit on the toilet and was found sitting on the floor with the left foot twisted backward at the ankle, after which the resident complained of ankle and foot pain. Facility investigative documentation and staff statements indicated that the resident was transferred and ambulated without the required level of assistance and without use of the stand-up lift as specified in the care plan. As a result of this failure to follow the care plan interventions, the resident sustained a left ankle fracture that required evaluation, treatment, and subsequent surgical repair. Facility-provided statements further described the circumstances leading to the fall. One nurse aide reported responding to the resident’s call bell for bathroom assistance and documented that another aide had told the resident to prove herself by using the walker. The responding aide stated she told the resident that this was not the way the resident was supposed to transfer anymore, but the resident insisted on using the walker. The aide reported that the resident ambulated with the walker until turning to sit on the toilet, at which point the resident began to fall; the aide attempted to guide the resident to the floor but the resident landed sitting on her left foot. In a subsequent interview, this aide confirmed she was aware that the resident’s transfer status required assistance of two staff members with a stand-up lift for transfers and two-person assistance for ambulation with a roller walker, and acknowledged that the resident was ambulated and transferred without the required assistance, resulting in the fall and injury. Medical records from the hospital documented that imaging revealed a comminuted fracture of the medial malleolus and a laterally displaced oblique fracture of the lateral malleolus of the left ankle, with an impression of medial and lateral malleolar fractures. The resident received narcotic pain medication and a splint and wrap were applied. Subsequent orthopedic consultation records described the fracture as a closed, displaced lateral malleolus fracture and later as a left bimalleolar ankle fracture, characterized as unstable and requiring surgical intervention with ORIF. Nursing documentation confirmed the resident was transferred for surgery and returned following ORIF of the left ankle. The facility’s investigation, as confirmed by the Nursing Home Administrator, determined that the nurse aide did not follow the resident’s care plan requiring two-person assistance for ambulation and transfers, which constituted neglect under the facility’s abuse and neglect policy.
Failure to Protect a Resident From Non-Consensual Sexual Contact by CNA
Penalty
Summary
Facility staff failed to protect a cognitively intact resident from sexual abuse when a CNA engaged in non-consensual physical contact. The resident’s quarterly MDS showed the resident was cognitively intact and care plan indicated independence with ADLs. On the morning in question, a housekeeper observed the CNA go to the nurses’ station from the direction of the resident’s room, look around, then quickly return to the resident’s room. When the housekeeper approached to clean the room, the door was slightly open; after a quiet knock and looking in, the housekeeper saw the CNA and the resident in a full hug, with the CNA kissing the resident on the mouth. The housekeeper then reported this observation to another housekeeper, who in turn reported it to the administrator. The facility’s abuse and neglect policy defined sexual abuse as non-consensual sexual contact of any type with a resident and required immediate reporting of all abuse allegations to the administrator. In a written statement, the CNA acknowledged going to the resident’s room and hugging the resident, claiming it was to comfort the resident, and denied kissing the resident, stating that hugging residents was not considered inappropriate. In contrast, the resident documented and later stated in interviews that the CNA had repeatedly come into the room when the roommate was absent or asleep to hug and kiss the resident, that these actions were not initiated or encouraged by the resident, and that the resident felt uncomfortable and did not want to be kissed. The resident also reported not disclosing these incidents earlier due to concern about how the CNA might treat the resident and the resident’s friends.
Trusted data from CMS and state health departments
Every citation, penalty and Plan of Correction is sourced from public CMS records (latest release May 27, 2026) and official state health department websites — never guesswork.
Trusted by long-term care providers and associations.
