A judge has dismissed a fine against an Iowa nursing home for the sexual assault of a resident, stating the home could not have foreseen the attacker would go after a man rather than the women he previously preyed upon.
Ruling that because the perpetrator of the assault “was not known to be homosexual or to engage in homosexual behaviors” prior to the assault, Administrative Law Judge Leslie A. Weyn set aside the $11,791 fine against the Northgate Care Center of Waukon.
According to state and federal records, the case involves a 61-year-old male resident of Northgate who had diagnoses that included severe Parkinson’s disease, dementia, hallucinations and “high-risk heterosexual behavior.” At various times over a period of several months in 2016, the man — identified in federal records as “Resident 1” — was seen exposing himself to others, roaming around the dining area with his pants around ankles and his genitalia exposed, and asking, “What does a guy have to do to get a boner around here?”
In October 2016, a psychiatrist noted Resident 1 was “doing very well according to staff” and “is no longer taking his pants off in public.” A few weeks earlier, however, a worker at the home heard Resident 1 make a sexually suggestive comment to a female resident.
Resident 1’s roommate, identified in federal records as “Resident 2,” was a 74-year-old intellectually disabled man who, on Nov. 1, 2016, summoned a nursing assistant to his room using his call light. The aide came to the room and found Resident 2 face down in his bed, with his pants pulled down. Resident 1 was standing over him, thrusting, with his pants down.
The men were separated and Resident 2 told workers he did not want his roommate to do what he had done, that he did not like what had happened, and that his roommate had used force against him.
Northgate reported the incident to the state, saying a resident had “tried to anally penetrate” another resident of the home. The police were summoned and launched an investigation. Medical personnel determined there had been no penetration.
Resident 2 told a social worker Resident 1 had approached him in bed, exposed himself, laid on top of him and touched Resident 2’s penis, at which point Resident 2 was able to reach the call light and summon the nursing assistant.
A psychiatrist later reported Resident 1 was “a danger to self and others. He requires specialized care for sexually aggressive male residents (with) dementia and psychosis. (Northgate) is unable to meet this resident’s needs as well as keep other residents safe in this setting.”
Federal records indicate that after citing the home for failing to ensure residents were free from sexual abuse, the state of Iowa imposed no fines, but the federal Centers for Medicare and Medicaid Services imposed a fine of $11,791 for failure to protect residents from harm.
Northgate appealed that fine, and in April 2018 a hearing on the matter was held before Judge Weyn, who issued her decision 31 months later, in November 2020. That decision was only recently made public.
At Northgate’s appeal hearing, witnesses for the home testified they had never observed Resident 1 engage in sexual behaviors directed at males.
In her ruling, Judge Weyn wrote, “There is no dispute that Resident 1 sexually assaulted Resident 2. There is no dispute that the assault occurred while both individuals resided at (Northgate). In CMS’ view, these facts are sufficient to establish that (Northgate) failed to protect Resident 2 from abuse.”
Weyn, however, agreed with Northgate that the facility was not at fault because although Resident 1 had a well-documented history of inappropriate sexual behavior, his actions involving Resident 2 were “unforeseeable” because Resident 2 is a male, not a female.
She ruled that Northgate had “proved by a preponderance of the evidence that, prior to November 1, 2016, it was not foreseeable that Resident 1 would commit a sexual assault or that the victim of such an assault would be a male.”
Northgate, Weyn ruled, was “responsible for failing to protect Resident 2 from abuse only if Resident 1 presented a foreseeable risk of abusive behavior prior to November 1, 2016 … Before the assault on Resident 2, Resident 1’s sexual behaviors were directed at female residents and staff.”
Because Northgate could not have anticipated the sexual assault, it was “in substantial compliance” with regulations requiring it to protect residents from harm, Weyn ruled, and therefore CMS “had no basis” for imposing an $11,791 fine.