Sexual abuse in nursing homes is the biggest scandal in the nursing home industry. It is a horrific reality that impacts too many people.
Sexual abuse in nursing homes is especially egregious because nursing home patients are uniquely vulnerable. Many lack the ability to communicate and cannot protect themselves due to their age and physical or mental condition. As a result, they exclusively depend on nursing home staff to protect them and to report and investigate sexual abuse.
If you know or suspect a loved one has been sexually abused in a nursing home please report it, and contact our office. We investigate and accept nursing home sexual abuse cases throughout California.
We have offices in Northern California at Walnut Creek, and Southern California, in San Diego. As a California nursing home sexual abuse lawyer, I can provide you with the information and support you need to navigate this difficult time.If you have any questions, please contact our office today.
Failure to Report OR Timely Report Sexual Assault in Nursing Homes is Common
The failure to report or timely report sexual assault is a common theme in many nursing home sexual assault cases. If you or a loved one have been sexually assaulted in a nursing home, you may have personally experienced this.
The all too frequent scenario unfolds something like this:
First, a sexual assault occurs in a nursing home.
Second, the sexual assault victim reports the assault to nursing home staff or staff learns that a sexual assault has allegedly occurred.
Third, the nursing home staff frequently delays in reporting the abuse or fails to report the abuse at all – including to the victim’s family, the Police, or the California Department of Public Health (CDPH).
Even when sexual abuse is reported, the report is often made late, with key details and information omitted from the report. The report may be unclear or ambiguous that a sexual assault occurred.
Nursing home staff may purposely emphasize certain facts and information when they report the sexual assault in an effort to mislead the Police and/or the California Department of Public Health. Their motivation is to steer the investigation or influence what Police and CDPH Investigators believe about the validity of the allegations, the victim’s reliability, or the motivations of the victim of their family.
For these reasons, it is vital that you or your loved one independently report the sexual assault to the Police, the California Department of Public Health, and your county’s Long-Term Care Ombudsman.
Failure to Report Sexual Assault Reduces Chances of Criminal Prosecution and Conviction
The failure to timely report sexual abuse in nursing homes significantly undermines the chances that the assault will be properly investigated.
During the delay, vital evidence, including DNA evidence, and other physical evidence is destroyed.
Police and CDPH Investigators are unable to obtain statements from witnesses, including the victim, while the events and circumstances are fresh in their minds.
If the victim suffers from diminished capacity, they may forget key details of the incident during the delay that could be helpful to the police investigation and any subsequent criminal prosecution. In severely diminished patients, they may forget the incident altogether.
This gives the nursing home the ability to control the narrative by documenting in the patient records and facility records information that supports their version of events.
Many times the abuser is not prosecuted – even when there is significant evidence that tends to prove wrongdoing has occurred.
Staff that failed to timely report the sexual assault are rarely fined or punished. Many keep their jobs or go on to work in other nursing homes without any consequences whatsoever.
For these reasons, immediately reporting a sexual assault that occurred in a nursing home is vital to ensuring the Police have every opportunity to collect all evidence, and complete a thorough investigation of the assault, to establish a crime has been committed.
Failure to Report Sexual Assault in a Nursing Home is a Crime and Significant Regulatory Violation
But wait, you may be thinking “I thought the nursing home staff were mandatory reporters?” and “Isn’t it a crime for a mandatory reporter not to report sexual assault?”
Make no mistake about it – failing to report a sexual assault in a nursing home is a crime in California. See, Ca. Welfare and Institutions Code Section 15630(h).
It is also a serious violation of Federal and State Regulations. Those laws provided regulatory agencies broad power to significantly fine any nursing home and staff that fails to report or timely report sexual assault.
Are Nursing Home Staff that Fail to Report or Timely Report Sexual Assault ever Charged with Crime?
Despite this, in our experience, nursing home staff that fail to report allegations of sexual assault are never charged with a crime.
Our office is not aware of any person ever being charged, prosecuted, or convicted under Ca. Welfare and Institutions Code Section 15630(h) for failing to report or timely report an allegation of sexual assault made concerning a nursing home patient that was made to them while they were working at a nursing home.
This is true, even though the California Department of Public Health has made specific findings that individuals and skilled nursing facilities have failed to report or timely report sexual assault at nursing homes in California.
Nursing Homes and Nursing Home Staff are Rarely Fined for Failing to Report Nursing Home Sexual Assault
Likewise, if nursing homes or their staff receive regulatory fines, they are relatively small or inconsequential when compared to the failure to report the sexual assault.
In June of 2019, the Office of the Inspector General Released a Report after conducting a long investigation into the incidents of abuse in nursing homes not being reported and investigated.
The Office of Inspector General is responsible for oversight of the Department of Health and Human Services (HHS) approximately $2.4 trillion portfolio of programs. The majority of the agency’s resources go towards the oversight of Medicare and Medicaid programs that represent a large part of the Federal budget and that affect this country’s most vulnerable citizens.
The report is titled, “Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated.” Based on their investigation, the Office of Inspector General made a number of very troubling findings:
First, they determined that 1 in 5 high-risk hospital ER Medicare claims for treatment provided in the year 2016 were the result of potential abuse or neglect, including injuries of unknown sources of beneficiaries residing in a skilled nursing facility.
Second, skilled nursing facilities failed to report many of the incidents as required by law to the State Survey Agencies, like the California Department of Public Health.
Third, the State Survey Agencies themselves, like the California Department of Public Health failed to report some findings of substantiated abuse to local law enforcement.
Fourth, the Center for Medicare and Medicaid Services (CMS) does not require all incidents of potential abuse or neglect and related referrals made to law enforcement and other agencies to be recorded and tracked in the Automated Survey Processing Environment Complaints/Incidents Tracking System.
The Automated Survey Processing Environment (ASPEN) Complaint/Incidents Tracking System (ACTS) is a suite of software applications designed to help State Agencies collect and manage healthcare provider data. ACTS contains identifiable information on individuals, who are complainants, residents, patients, clients, contacts, or witnesses. It also may include alleged perpetrators, survey team members, laboratory directors, laboratory owners, and employees and directors of the health care facilities noted previously.
ACTS is designed to manage all operations associated with complaint and incident tracking and processing, from initial intake and investigation through the final disposition.
Office of Inspector General’s Example of Sexual Assault
The Report cited an all-too-common incident of sexual assault in a nursing home with all the hallmarks. Below are experts directly from the report.
Jane Doe was a Medicare beneficiary receiving services at an SNF. Ms. Doe had a previous medical condition, which contributed to verbal and mobility limitations.
According to the emergency room record, a male resident of the SNF allegedly sexually assaulted Ms. Doe. Nursing aides found the man on top of Ms. Doe squeezing and touching her breast and ejaculating on her. The emergency room record further noted that Ms. Doe’s right breast was an “area of discomfort,” and two silver-dollar-sized bruises were observed on her breast.
The SNF’s employees covered under section 1150B of the Act did not immediately report the incident to law enforcement. Instead, according to the Survey Agency’s report, the following day the SNF’s employees informed Ms. Doe’s family of the incident who then contacted law enforcement, which investigated the incident. The emergency room record notes that the SNF staff assisted Ms. Doe with bathing, going to the bathroom, and changing her clothing after the incident. These actions could have destroyed any evidence that may have been detected using the rape kit.
The Survey Agency reviewed the incident and cited the SNF for failure to:
- immediately tell the beneficiary’s doctor and a family member of the beneficiary of the incident;
- report and investigate an instance of abuse;
- develop policies that prevent abuse; and
- provide care in a way that keeps or builds each resident’s dignity.
The Survey Agency did not cite the SNF for failure to ensure the Medicare beneficiary was free from abuse and instead classified the incident as resulting in “minimum harm or potential for actual harm.”
These are shocking findings about abuse, neglect, and the lack of proper reporting and investigation in nursing homes.
The California Department of Public Health, the Centers for Medicare and Medicaid Services, and some District Attorneys have simply not taken enough action to stop the incidents of sexual assaults in nursing homes by squarely addressing the failure to report it.
The tragic example of sexual assault which was not properly reported that was cited in the Inspector General’s Report illustrates why it is so important to immediately take action if you or your loved one has been sexually assaulted in a nursing home.
You should report the sexual assault to all authorities yourself. Make reports by phone and in writing and keep copies of the report for yourself.
California’s Most Recent “New” Law to Combat Nursing Home Sexual Assault is Hollow
The California legislature recently passed a “new” law to combat sexual assault in nursing homes. See, Ca. Business and Professions Code Section 805.8. While it may have made for good headlines, it won’t change anything.
First, nursing home patients don’t need new laws. They need regulatory agencies, police, and prosecutors to enforce the laws that already exist. Existing laws were not being enforced adequately before the passage of this new law. We presume this one won’t be either.
Second, the law appears watered down by industry lobbyists to provide only the illusion of protection.
The law isn’t triggered unless the sexual assault is reported in writing. However, many nursing home patients cannot write or are otherwise incapacitated preventing them from doing so.
The law also only requires that nursing homes report sexual abuse within 15 days. However, within 15 days, the evidence of the assault, in virtually every scenario, will have been destroyed. Most importantly, within 15-days, other nursing home patients could be assaulted.
The law also has two tiers for fines. The law provides for a $100,000.00 fine if the failure to report was intentional or willful. The law provides for a $50,000.00 fine if the failure was negligent.
Why Aren’t Mandatory Reporting Laws Re: Sexual Assault in Nursing Homes Enforced?
That’s the big question – why?
Discussing sexual assault in nursing homes makes people very uncomfortable. It is not pleasant to imagine a vulnerable elderly person being sexually assaulted. It’s difficult to confront the reality that it occurs. To avoid that discomfort, people are inclined to look the other way.
Nursing homes know that there may be a significant legal liability if a person is sexually assaulted at their Facility, so some managerial staff overtly or implicitly encourage staff not to report it, document it, or address it – this is particularly true when they believe (rightly or wrongly) that the allegation is false.
Staff in nursing homes are also hesitant to believe that a patient was assaulted. They may be concerned that the allegation is false, so they don’t report it thinking it is not true.
Regulators that investigate sexual assault have often worked in the healthcare field. Some believe that sexual assault is something that you cannot account for and may feel it is unfair to punish nursing staff because a colleague or other patient committed a crime that they largely see it as something outside of the nursing home administrators or director of nursing’s control.
This tragic reality has played out time and again in nursing homes across California.
Signs that a Person has been Sexually Abused in a Nursing Home
Here are some signs that you should be aware if you or your loved one is suspected of being sexually assaulted in a nursing home. The signs often present like the signs of other physical or emotional abuse with some exceptions.
Physical Signs of Sexual Abuse in a Nursing Home
- Injury to pelvis
- Injury to the inner thigh area and buttocks
- New or unexplained symptoms consistent with sexually transmitted diseases
- Bloody or stained undergarments
- Problems walking and sitting
Psychological Signs of Sexual Abuse in a Nursing Home
- Sudden withdrawal from normal activities
- Attempts at Suicide
- Noticeable fear or discomfort around certain staff or residents
- Symptoms that are consistent with Post Traumatic Stress Disorder or Anxiety
Get the Answers You Need by Contacting a Nursing Home Sexual Abuse Lawyer
If you or a loved one has been the victim of sexual abuse in a nursing home or assisted living facility and you have questions about your rights and what you should do next, please contact our office. I am available to speak with victims and their family members at no charge. I handle all nursing home sexual abuse cases on a contingency basis. You don’t pay unless we win. I believe standing up and exposing perpetrators of sexual abuse in nursing homes is important, and as a California nursing home sexual abuse lawyer, I can help you. Contact me today.