Failure to Prevent Resident-to-Resident Sexual Contact and Inadequate Response to Prior Behaviors
Penalty
Summary
The facility failed to protect a resident’s right to be free from abuse when a cognitively intact resident experienced unwanted and unconsented touching of their breasts by another resident. The facility’s abuse, neglect, and exploitation policy defined sexual abuse as non-consensual sexual contact of any type with a resident and required the establishment of a safe environment to prevent sexual abuse and protect all residents from abuse. Despite this policy, the resident reported that while passing a snack closet near the nurse’s station on the way to their room, another resident positioned in the hallway made unwanted physical contact with their chest area, and the resident had to tell the other resident to stop and then sought staff assistance. The resident who experienced the touching had an admission MDS indicating they were cognitively intact, able to make their own decisions, and required moderate assistance with transfers, dressing, toileting, and personal hygiene. Their emotional/trauma care plan documented a history of sexual assault, physical assault with a weapon, and an unexpected sudden death of someone close, and identified them as at risk for decreased psychosocial well-being and emotional distress. The care plan directed staff to help identify triggers and attempt approaches to reduce anxiety and fear so the resident would feel safe and secure in the environment. Following the incident, the resident reported to social services that they felt safe in the facility provided the other resident was kept away from them. The resident who engaged in the inappropriate touching had an MDS showing confusion, memory loss, limited ability to understand or be understood, a non-English preferred language requiring an interpreter, and diagnoses including heart failure, Alzheimer’s disease, anxiety, and depression. This resident had documented physical, verbal, and wandering behaviors, as well as a care plan for sexually inappropriate behavior that included grabbing private areas and hitting buttocks, and another care plan for intrusive behaviors and wandering into other residents’ spaces. Progress notes documented three prior incidents of this resident sexually and inappropriately slapping and grabbing other residents, but the notes did not indicate what staff did in response or what actions were taken to protect other residents. On the day of the incident, observations showed this resident in their room without one-on-one supervision for extended periods, and the facility’s investigation concluded that abuse and neglect were ruled out, determining the incident to be behavioral rather than intentional, despite the history of similar behaviors and the facility’s abuse policy requirements.
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