Editor's Note: The following story includes descriptions of sexual assault, which some readers my find disturbing.
On an evening in February 2019, a 48-year-old wheelchair-bound woman settled in her room at San Diego’s Reo Vista Healthcare Center with a sandwich and ice cream.
The woman — diagnosed with a brain disease and severe anxiety but deemed to be cognitively intact — alleges that when she started to eat she heard a caregiver, Ariel Camargo Chavarin, call her name and enter her room. She said he asked her to sit on the edge of her bed.
He then allegedly forced her to lay down and raped her.
Chavarin is facing multiple sexual assault charges and his trial is scheduled for early next year in San Diego County Superior Court.
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This alleged incident is also documented by the California Department of Health (CDPH) in the “enforcement actions”’ section of its Cal Health Find Database website with a conclusion that Reo Vista “failed to provide a safe environment.”
But one has to dig deep into what is known as CDPH’s “transparency website” to find it. The main complaint page describes the attack as simply employee-to-resident abuse that was substantiated.
Ernie Tosh, an attorney who specializes in nursing home law, called this description incomplete and “extremely dangerous to the public.”
The state agency’s complaint website is meant to be a one-stop consumer information resource for people who are looking for a safe nursing home for themselves or a loved one.
But instead, KPBS found mislabeling and errors — particularly when it comes to sexual abuse claims. Some critics go so far as to say CDPH might be intentionally hiding the details of sexual assault allegations to protect nursing homes.
“I view it as evidence that on an institutional level, (CDPH) is more concerned with obscuring actual information that suggests employees may be engaging in sexual assault than they are in providing that information to the public,” said Scott Fikes, an attorney who has represented nursing home sexual assault victims.
KPBS gave CDPH officials multiple opportunities to explain their methods for documenting and investigating alleged sexual abuse incidents, but a spokesperson largely would not respond to questions. CDPH officials have also refused multiple requests for interviews regarding their regulation of nursing homes.
Cases but not deficiencies
CDPH’s difficult-to-navigate website is just one way the public misses crucial information on nursing home sexual abuse cases, according to advocates. The agency also can keep details under wraps by how it classifies the incidents.
CDPH has substantiated at least 24 sexual assaults at 18 San Diego County nursing homes from Jan. 1, 2019 through Sept. 10, 2022, according to a KPBS review of complaints from all 84 nursing homes in the region listed on its website.
However, in only nine of those cases did the website show that CDPH found a nursing home had “deficiencies.” A deficiency occurs when a facility fails to meet a state or federal standard.
CDPH’s substantiation of a sexual assault at a nursing home without finding any deficiencies indicates that the agency is abdicating one of its most basic responsibilities, said San Diego patient safety advocate Marian Hollingsworth.
“There is a law that was violated,” Hollingsworth said. “And if they (CDPH) are not following the laws of the state, then they are failing to do their job to protect the public.”
Hollingsworth added that when CDPH does not cite a nursing home for deficiencies in these cases, there is little incentive for the facility to improve resident safety.
“This sends the message to the facility that no matter what we do, we're going to be fine,'' she said. “We won't even have to create a care plan to just say how this is not going to happen again.”
CDPH staff investigate incidents at nursing homes on behalf of the Centers for Medicare & Medicaid Services (CMS) to determine compliance with federal requirements.
“Any instances where these requirements are violated should require a citation and a plan of correction,” CMS said in an emailed response to KPBS. “Sexual, or any type of abuse is never acceptable and would be cited.”
Why transparency matters
If there is no deficiency finding in nursing home sexual abuse cases, then CDPH does not release details of the substantiated incident.
But when state surveyors do find deficiencies, the details they make public in the process can provide vital background and context for consumers choosing a nursing home.
For example, in 2018 Fredericka Manor Care Center in Chula Vista admitted a man with a sexual deviation disorder diagnosis, according to a CDPH deficiency report substantiating an abuse case at the facility.
A doctor’s note in the file of the man, who allegedly sexually assaulted another resident, said he had been “informed by staff of this patient’s verbal, physical and sexual aggression.” The man was also prescribed a drug used to lower the sex drive in people who behave in sexually inappropriate ways.
Though Fredericka Manor staff had this information, state surveyors concluded that the facility still neglected to develop a care plan to monitor the man even after he sexually abused a fellow resident in 2020, according the CDPH deficiency report.
At Sharp Chula Vista Medical Center's skilled nursing facility, CDPH surveyors found that the facility failed to “follow their policy to ensure” a resident was adequately monitored before he was sexually inappropriate with other residents and staff in 10 incidences from September 2019 to January 2020.
Neither Fredericka Manor nor Sharp Chula Vista returned calls seeking comment.
A cluster of complaints in one home
The San Diego County nursing home with the most sexual abuse claims is Avocado Post Acute in El Cajon, the records show. There were nine sexual abuse complaints at Avocado during a six-month period in 2021. CDPH did not substantiate a single one of the allegations.
In an emailed statement to KPBS, a CDPH spokesperson said: “Please note a complaint alleging an incident of abuse does not always mean the allegation was substantiated.”
But Fikes questioned CDPH’s diligence in investigating Avocado.
“I find that it's very difficult to believe you could have that many sexual assault complaints and not be able to figure out what was going on in that facility,” Fikes said of the 2021 records.
CDPH has substantiated three of the four sexual assault complaints filed at Avocado between January and September 2022. But two of the three cases were substantiated without deficiencies.
Advocates point to the case of Matthew Fluckiger, which began at Avocado, as a glaring example of CDPH’s shortcomings when it comes to these investigations.
In 2019, a woman living at Avocado accused Fluckiger of sexually assaulting her during a diaper change, records show. But CDPH doesn’t categorize the incident on its complaint website as sexual abuse.
Six weeks later, Fluckiger sexually violated another woman at San Diego Post Acute in El Cajon, records show.
Even though investigators from CDPH’s certification branch substantiated the attack (and Fluckiger himself pleaded guilty to sexually assaulting the woman) the agency’s complaint website describes the attack as unsubstantiated.
It is also not listed as sexual in nature. And the CDPH erroneously lists Fluckiger as a resident instead of an employee.
CDPH also failed to classify Fluckiger’s two sexual assaults of a third woman at Parkway Hills nursing home in La Mesa in early 2020 as sexual in nature. A jury convicted Fluckiger in that case earlier this year.
Tony Chicotel, an attorney with the California Advocates for Nursing Home Reform (CANHR), called the errors alarming.
“It begs a lot of questions,” Chicotel said. “If a jury found that this incident happened in this facility and it's not reflected anywhere on the transparency website, then I think we need to go back to the drawing board on what transparency means.”
'Culture of disinterest’
Chicotel contends that at the heart of CDPH’s poor sexual assault complaint documentation is an agency culture of disinterest, even contempt.
He points to conversations he said he has had with regulators about serial sex offenders at longterm care facilities and how he believes the system isn’t set up to identify and stop them from working inside nursing homes.
“And the response was hostile indifference,” Chicotel said. “I can recall lots of situations where I've called in complaints about real terrible offenses that allegedly occurred in nursing homes and being made to feel like I was the bad guy for bringing this to their attention.”
CDPH’s consistent theme on the topic is: “We don’t want to do anything differently than what we’re doing now,” Chicotel said.
He also criticized CDPH’s frequent practice of not identifying whether an accused perpetrator of sexual abuse at a nursing home is an employee or resident on its complaint website.
CDPH argued the distinction is irrelevant to its overall investigations of abuse.
“The allegation category does not differentiate between types of alleged abusers, as all cases of abuse are prioritized under the same level of severity,” said CDPH in a written response to KPBS.
CMS officials refused to weigh in on whether the state agency should identify the role of the alleged abuser.
In response to questions from KPBS, the agency wrote in an emailed statement: “If noncompliance was the result of abuse by a certain type of perpetrator, CMS would expect the facility’s plan of correction to ensure that abuse by that type of perpetrator would not happen in the future.”
But Chicotel argued that by failing to distinguish the roles of alleged abusers, state regulators have removed a vital element in understanding sexual assaults in California nursing homes.
“Resident on resident sexual assault, it's terrible, it shouldn't happen, but it's oftentimes very short lived,” Chicotel said. “Staff on resident, it's usually not just a brief incident, it's oftentimes sustained, seems much more predatory, and it seems more damning in terms of the facility's quality of care.”
A possible solution
That is why Fikes, who represented one of Fluckiger’s sexual assault victims, said it’s time to have federal law enforcement investigate sexual assaults in nursing homes
He envisions a system that trains federal investigators in how nursing homes function, what factors lead to sexual assaults in senior communities and how to hold facilities accountable when they fail to timely report crimes.
”I don't believe the current state legal framework, that is intended to do that, works,” Fikes said. “I simply believe that it is better to allow federal authorities to address this, and I think that if they do, that it would have a material impact on how many of these incidents occur.”
Editor's note: Fredericka Manor Care Center and Sharp HealthCare, which is the parent organization of Sharp Chula Vista Medical Center's skilled nursing facility, are KPBS underwriters.
The California Department of Public Health’s online page recording complaints against nursing homes is often called the agency’s “transparency website,” but a KPBS review of sexual abuse complaint tallies found inaccuracies and omissions.
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