Failure to Protect a Resident From Sexual Abuse by a CNA
Penalty
Summary
The deficiency involves the facility’s failure to protect a resident from sexual abuse by a staff member, specifically a CNA, in violation of the facility’s abuse, neglect, and employee–resident relationship policies. The resident involved had a documented history of mental illness, including anxiety, depression, mood changes, manic episodes, poor impulse control, poor decision making, poor social boundaries, and a history of failed residential placements and short-term employments. The resident had a legal guardian and had been identified in the PASARR Level II evaluation as needing a structured environment, psychotherapy, drug therapy and monitoring, structured socialization activities, development of appropriate support networks, and implementation of plans to change inappropriate behavior. The resident’s care plan documented poor impulse control and various behavioral issues, including manic episodes, false allegations, and fixation when things did not go his/her way. Despite these known vulnerabilities and the facility’s written policies prohibiting employee dating relationships with residents and defining sexual abuse (including via technology), the CNA engaged in an inappropriate, sexualized relationship with the resident. According to the resident’s statement and the facility’s investigation, the resident asked the CNA for his/her phone number, and the CNA entered the number into the resident’s phone. They then began texting and exchanging videos. Text messages from the CNA to the resident included explicit sexual content, such as a message describing giving hand jobs and a sexually suggestive statement about making the resident’s genitals hard, accompanied by a photo of the CNA in underwear. The resident reported that this communication progressed to physical contact, including kissing and mutual genital touching. The resident stated that the sexual contact occurred in the resident’s room, in a linen closet, and in the area where cigarettes were located. The resident described that the CNA waited until other residents went outside for a smoke break before approaching him/her, and that on at least one occasion another resident knocked on the door, the CNA left to assist that resident, and then returned to continue the sexual contact. The facility’s investigation concluded that the CNA crossed professional boundaries by sharing a personal phone number, texting, sending videos, and engaging in physical contact with the resident, and that these actions were not allowed under facility policy and constituted abuse. The resident’s guardian reported that the resident did not have the ability to consent to sexual activity and had been determined incapacitated and disabled by a court, with poor impulse control and decision making. On the day the incident came to light, nursing notes documented that the resident had been flipping tables and chairs, was vaping in the common area, and expressed dissatisfaction with medications and daily routine. Later that same day, the resident told staff that a staff member of the opposite gender had sent pictures to his/her phone. The Activity Director, responding to a behavioral code, calmed the resident and brought him/her to the office, where the resident disclosed being upset about texting and video communication with the CNA and being told to erase the messages. The resident then showed the Activity Director the texts and videos on the phone. These events and findings formed the basis for the determination that the facility failed to ensure the resident was free from sexual abuse by a staff member.
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