Failure to Protect Cognitively Impaired Resident From Sexual Assault by Another Resident
Penalty
Summary
The deficiency involves the facility’s failure to protect a cognitively impaired resident from sexual assault by another cognitively impaired resident, despite policies on abuse prohibition and identifying sexual abuse and capacity to consent. The facility’s Abuse Prohibition Policy and Procedures required identification, correction, and intervention in situations where abuse was more likely to occur, including monitoring residents with aggressive or intrusive behaviors. The Identifying Sexual Abuse and Capacity to Consent policy stated that consent is not valid if a resident lacks capacity or if there is reason to suspect the resident does not wish to engage in sexual activity, and required investigation and protection when non-consensual sexual relations were suspected. The resident who was assaulted had Alzheimer’s disease and a BIMS score of three, indicating severe cognitive impairment, and therefore lacked capacity to consent to sexual activity under the facility’s own policy. On the day of the incident, a CNA initially observed the alleged perpetrator resident sitting in his wheelchair in the doorway of the cognitively impaired resident’s room while she was in bed watching television. Later, the CNA noticed that the resident’s door was closed and, upon opening it, saw the same resident in his wheelchair inside the room next to the bed. The CNA closed the door and went to get an LPN to verify whether it was appropriate for him to be in the room. When the CNA and LPN entered the room together, they saw the resident in bed with a jacket and shirt on and a sheet covering her from the waist down, and did not initially notice anything unusual. After they left the room, the CNA asked the LPN if she had seen a brief near the pillow; when the LPN said she had not, they re-entered the room and observed the brief by the pillow. During the subsequent assessment, the LPN pulled back the sheet and found the resident naked from the waist down, with blood noted on the sheets and a moderate amount of blood in the vaginal area, including dried blood on the outer vaginal skin. The CNA reported that when she began placing a new brief on the resident, blood began to leak onto the brief, and a second brief showed a yellow discharge. The resident was sent to the hospital, where a SANE examination documented vaginal penetration and a one-centimeter laceration to the left vaginal wall. The other resident involved, who had a BIMS score of five indicating severe cognitive impairment, was found to have dried red blood on his right middle finger, and later told law enforcement that he had placed his fingers into the resident’s vagina while in her room with the door closed. These events demonstrate that the facility did not effectively implement its abuse prevention and sexual abuse identification policies to protect the resident from non-consensual sexual contact.
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