Appeals court upholds sexual abuse F-Tag

A federal appeals court has upheld the government's leveling of Immediate Jeopardy level penalties at a Kentucky nursing home over allegations of resident sexual abuse. The split court ultimately cited “systemic failure” by the provider for not taking “every reasonable measure to protect its residents from abuse.”

An 85-year-old male resident at Somerset Nursing & Rehabilitation Facility in Somerset, KY, began harassing female residents shortly after being admitted in February 2008, according to court records. There were 16 instances of abuse at Somerset, such as improperly touching a cognitively impaired resident, before he was discharged in January 2009. 

The Centers for Medicare & Medicaid Services fined Somerset roughly $765,000 for a period covering May 2008 to January 2009. The offense was failure to substantially comply with a regulation that says a resident of a skilled nursing facility has the right to be free from sexual, physical, and mental abuse. 

The resident in question had been diagnosed with dementia and several other diseases, including congestive heart failure, and was primarily in a wheelchair, according to court records. 

That was a sticking point for U.S. Court of Appeals, Sixth Circuit Judge Eugene Siler Jr., who said that he did not feel the sexual incidents were sufficient evidence to warrant an Immediate Jeopardy citation for the period spanning Aug. 21, 2008, to Jan. 6, 2009. He also said that neither party had cited a previous federal court case of an “attempted touching by one patient to another to be a Level 4 ‘immediate jeopardy.'”

But in an Oct. 18 opinion written by Judge Helene White, the court affirmed the deficiency findings and the Immediate Jeopardy finding for the late 2008 period. She said Somerset demonstrated a “systemic failure” to deal with abusive residents.

The case now reverts to the administrative law judge.