In the Know

Seventh Circuit Upholds Citation and Penalty Against Nursing Facility Relating to Sexual Activity Among Residents
January 14, 2019
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Arnall Golden Gregory LLP

The United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”) rejected an Illinois nursing facility’s challenges to an Immediate Jeopardy (“IJ”) citation and resultant $83,800 civil monetary penalty (“CMP”) related to the facility’s failure to investigate whether sexual interactions among three residents of the facility, all of whom suffered from dementia and/or Alzheimer’s disease, were consensual in nature.  Neighbors Rehabilitation Center, LLC v. United States Department of Health and Human Services, No. 18-2147, ___ F.3d ___ (7th Cir. 2018).

The Neighbors case involved sexual interaction among three residents—two male and one female—all of whom suffered from varying degrees of dementia and/or Alzheimer’s disease.  In one instance, a nursing assistant witnessed one of the male residents (“R1”) performing a sexual act on the other male resident (“R2”).  She observed no sign that R2 objected to the act and did not intervene.  When asked by staff about a subsequent instance of sexual activity between R1 and R2, R1 denied any relationship with R2, and R2 said he could not recall any interaction with R1.  Later, R2 was observed by staff touching the female resident (“R3”) in a sexual manner.  While the staff did not observe any sign that R3 objected to the touching, they nevertheless were concerned that her very low cognitive functioning and severe hearing impairment prevented her from understanding what was occurring and intervened to separate her from R2. 

The state survey agency cited the facility at the IJ level under the accident prevention tag, and consequently, CMS assessed a CMP.  The facility challenged both the IJ finding and the amount of the CMP. 

At issue in the case was the facility’s policy not to intervene or report sexual interactions among residents, including residents with dementia and/or Alzheimer’s disease, unless one of the participants showed outward signs of non-consent. 

The Administrative Law Judge (“ALJ”) upheld the IJ finding and CMP.  With respect to the IJ finding, the ALJ called the facility’s non-intervention policy “misguided,” and concluded that it left residents at risk of victimization because their cognitive deficits may have adversely affected their ability to actively protest or object.  The ALJ cited the facility’s level of culpability, history of noncompliance, and financial condition to determine that the $83,800 CMP was reasonable.

The facility appealed the ALJ’s decision to the Departmental Appeals Board (“DAB”).  In finding that the ALJ’s decision was supported by substantial evidence, the DAB noted that the facility never actually assessed whether the residents could consent, determined that they did consent, or monitored the residents to ensure their continued safety.

Having exhausted administrative remedies, Neighbors appealed to the Seventh Circuit, challenging the noncompliance with the accident prevention regulation, the IJ finding, and the reasonableness of the CMP.

The court began its discussion of the challenge to the citation by explaining that its review was limited to whether the administrative agency’s conclusions were supported by substantial evidence.

In reviewing the citation, the court pointed to evidence in the record that facility staff undertook no investigation into whether the interactions were consensual or the capacity of the individuals to consent and never even spoke to the residents until the day the state survey agency was on the premises to investigate a complaint about the situation.  The court juxtaposed the ALJ’s observation that the cognitive deficits of R2 and R3 created an even greater need to investigate whether any abuse was taking place with the facility’s argument that consent should be presumed unless the victim exhibits resistance to the activity, and stated that because state law did not require resistance in order to prove sexual assault, any presumption of consent would essentially hold individuals with dementia and Alzheimer’s to a higher standard than the average resident of the state.  As a result, the court found that the citation was supported by substantial evidence.

Moving on to the IJ finding, the court explained that it is bound to uphold an IJ categorization so long as it is not clearly erroneous.  The facility argued that the evidence did not support an IJ finding because its staff were trained to report suspected abuse immediately.  The court disagreed and stated that the non-intervention policy prevented any real inquiry into consent, except in the extreme situation in which a resident was “yelling or acting out.”  Moreover, the court noted that a staff member who separated two of the residents was disciplined for violating the non-intervention policy.  As a result, the court concluded that the record was “replete with evidence that Neighbors’ deficiency was likely to cause, and may have actually caused, serious harm to the residents.”

Finally, with respect to the CMP, the court stated that its review of the ALJ’s decision, which considered the facility’s history of noncompliance, its financial condition, the categorization of the deficiency and the facility’s culpability, would be upheld as long as it was supported by substantial evidence.  Neighbors argued that while it had been cited under the same regulation previously, the nature of the past noncompliance was unrelated to the situation at hand.  The court, however, explained that because CMS may consider a facility’s prior history of noncompliance in general, the fact that the citations under the accident tag were unrelated was irrelevant.  Regarding the facility’s financial condition, the court noted that the facility had dropped its argument that the large CMP could affect its continued operation.  Accordingly, it concluded that Neighbors no longer wished to challenge that specific prong of the ALJ’s determination.  Finally, the court dismissed the facility’s argument with respect to the last two factors on the basis that the argument was premised on the facility’s assertion that its policy was appropriate and adequate, which it had already disposed of in the challenge to the citation.

As a result of the foregoing, the court affirmed the decision of the DAB.

The Neighbors case further muddies the waters surrounding the delicate balance that nursing facilities must maintain between allowing residents to exercise their right to engage in consensual sexual activity and protecting residents from abuse.  What is clear from this case, however, is that when dealing with residents who have dementia and/or Alzheimer’s disease, nursing facilities run the risk of an IJ citation and substantial monetary penalties if they simply rely on a passive policy of non-intervention in the absence of outward, observable signs of non-consent.  How far a nursing facility must go to protect residents from abuse, and whether (or at what point) a nursing facility might go “too far” and risk depriving residents of autonomy, are not answered by the Neighbors case.  However, the Neighbors case suggests that the facility should take a more active approach to determine whether the residents involved have the capacity to consent and do, in fact, consent to the activity.  Further, that determination should be made on an ongoing basis given that decision-making capacity is not static and can change from time to time.  Also, the facility should closely monitor resident interactions and make the appropriate determinations before the sexual activity takes place or act promptly upon becoming aware of the activity. 

Finally, although the court limited its opinion strictly to the facts before it, this case suggests that a facility may have an obligation to make a more considered determination of consent involving sexual activity among residents who do not have cognitive deficits, especially given the emphasis being placed by CMS on the issue of abuse and the heightened sense of awareness that the #metoo movement has generated regarding sexual assault in society as a whole.