Failure to Implement Abuse Policy for Resident-to-Resident Sexual Contact
Penalty
Summary
The deficiency involves the facility’s failure to implement its abuse, neglect, and exploitation policies related to capacity to consent to sexual activity and immediate protection measures following a resident-to-resident sexual interaction. The facility’s written policy required establishing a safe environment that supports consensual sexual relationships by identifying when, how, and by whom determinations of capacity to consent to sexual contact would be made, and where this documentation would be recorded. The policy also required written procedures to assist staff in identifying different types of abuse, including sexual abuse, and mandated immediate protective actions such as responding immediately to protect the alleged victim, examining the alleged victim for injury or psychosocial harm, increasing supervision, making room or staffing changes if necessary, and providing emotional support. Despite these requirements, there was no evidence in the records that capacity assessments were completed or that consent was evaluated by a qualified professional for the residents involved. The incident involved two residents out of a sample of 51. One resident was admitted with dementia without behavioral disturbances and had a quarterly MDS BIMS score of 15/15, indicating cognitively intact status. The other resident was admitted with delirium with a known psychological disorder and had a quarterly MDS BIMS score of 10/15, indicating moderate cognitive impairment. An incident report documented that one resident was found in the other resident’s bed and was observed kissing the other resident on the lips. The facility did not immediately separate the residents at the time of the incident, did not implement 30‑minute checks as required, and did not notify police until two days after the event. During a subsequent interview, the Administrator stated that both residents were capable of making their own decisions, believed that sexual abuse had not occurred, and stated that both residents had consented to the interaction. The report notes that the facility’s misunderstanding of the definition of resident‑to‑resident sexual abuse resulted in a failure to initiate capacity assessments and protective interventions as required by policy.
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