Neighbors Rehab. Ctr., LLC v. U.S. Dep't of Health & Human Servs., 18-2147
| Decision Date | 07 December 2018 |
| Docket Number | No. 18-2147,18-2147 |
| Citation | 910 F.3d 919 |
| Parties | NEIGHBORS REHABILITATION CENTER, LLC, Petitioner, v. United States DEPARTMENT OF HEALTH AND HUMAN SERVICES, Departmental Appeals Board, and Centers for Medicare and Medicaid Services, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Eva M. Byerley, Attorney, GENERATIONS HEALTHCARE NETWORK, Lincolnwood, IL, for Petitioner.
Alan S. Dorn and Joan M. Zanzola, Attorneys, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Office of the Chief Counsel, Region V, Chicago, IL, for Respondents.
Before Bauer, Rovner, and St. Eve, Circuit Judges.
Neighbors Rehabilitation Center is a skilled nursing facility participating in Medicare and Medicaid. The Centers for Medicare and Medicaid Services ("CMS") assessed a civil monetary penalty against Neighbors after concluding that Neighbors inadequately addressed sexual interactions between three cognitively impaired residents. CMS determined that Neighbors’ failure to act put the residents in "immediate jeopardy," and, as a result, issued Neighbors a citation and an $83,800 penalty. After a hearing, an administrative law judge affirmed the citation and penalty, and the Department of Health and Human Services Departmental Appeals Board upheld the ALJ’s decision. Neighbors seeks review of the citation, the immediate jeopardy categorization, and the amount of the penalty. We conclude that substantial evidence supports the Agency’s determinations and we therefore affirm.
Neighbors provides nursing care to residents, including those with dementia and Alzheimer’s disease
. Neighbors participates in the Medicare program and is subject to compliance with the Medicare Act, which CMS monitors.
CMS delegates surveys of participating facilities to state agencies, including, here, the Illinois Department of Public Health ("IDPH"). 42 U.S.C. §§ 1395aa(c), 1395i-3(g). Surveys are conducted by "a multidisciplinary team of professionals (including a registered professional nurse)." Id. § 1395i-3(g)(2)(E)(i).
When conducting a survey, IDPH determines whether a facility is in substantial compliance with Medicare requirements, meaning "a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm." 42 C.F.R. § 488.301. IDPH may issue a citation to a facility if it finds a deficiency in compliance. Deficiencies are classified by a letter category A-L, with L being the most severe. The more severe tags are imposed when there is "immediate jeopardy" to residents. "Immediate jeopardy means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident." Id. The following is an overview of the deficiency categorizations:
Immediate jeopardy to resident J K L
health or safety
Actual harm that is not immediate G H I
No actual harm with potential D E F
for more than minimal harm
that is not immediate jeopardy
No actual harm with potential A B C
for minimal harm
Isolated Pattern Widespread
Rosewood Care Ctr. of Swansea v. Price , 868 F.3d 605, 609 (7th Cir. 2017) ().
Deficiencies may result in the imposition of a civil monetary penalty. 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(I). The penalty is imposed from the time the facility goes out of compliance until it returns to substantial compliance. Penalties for "immediate jeopardy" deficiencies range from $3,050-$10,000 per day. 42 C.F.R. § 488.438(a)(1). Penalties for "deficiencies that do not constitute immediate jeopardy, but either caused actual harm, or caused no actual harm, but have the potential for more than minimal harm" range from $50-$3,000 per day.1 Id.
The deficiency here relates to Neighbors’ handling of the sexual interactions of three residents with dementia and/or Alzheimer’s, whom we will refer to as R1, R2, and R3.
At the time of the incidents, R1 was an 80-year-old male resident suffering from dementia
and behavioral disturbances. Despite his diagnoses, he functioned at a high level. As of February 2013, R1’s care plan stated that staff should assess if R1’s behavior endangered other residents and intervene if necessary. In January 2014, R1’s care plan was updated to show that he exhibited inappropriate and disruptive behaviors that affected residents and staff.
R2 was a 65-year-old male resident suffering from Alzheimer’s, dementia
, behavioral disturbances, and lower extremity cerebral vascular disease. He had significant cognitive and hearing impairments and trouble speaking. His vision was also somewhat impaired. People communicated with R2 by writing on a dry-erase board in his room, and he used a wheelchair. R2 exhibited socially inappropriate behaviors including asking staff to perform sexual acts and inappropriately touching staff. He also physically acted out towards others and was verbally threatening.
R3 was a 77-year-old female resident suffering from Alzheimer’s. She had very low cognitive functioning and a severe hearing impairment. R3 was also prone to wandering.
R1 and R2 resided in two separate rooms connected by a shared bathroom. On February 4, 2014, a nursing assistant saw R1 in R2’s room. The covers on R2’s bed were pulled back and R1 was "masturbating" R2. The nursing assistant did not see R2 objecting and so she did not intervene. Neighbors’ staff documented the interaction in the residents’ nursing notes but did not investigate further.
One day later, R2 told a nursing assistant that he had heard rumors going around that he was homosexual, and R2 stated that he was not homosexual. On February 8, 2014, a nurse saw R1 in R2’s room, touching R2’s penis. Although R2 was not objecting, the nurse told R1 to leave the room. When R1 and R2 were later asked about these interactions, R1 denied having any kind of relationship with R2, and R2 could not recall any interactions with R1.
On February 11, 19, and 20, 2014, R2 fondled R3’s breasts. R2 also made inappropriate sexual comments to R3, and, on a date unclear from the records, "grabb[ed] R3’s vagina." An aide witnessed R2 and R3’s February 19 interaction and moved R2 away from R3. In a later interview, the aide stated that she moved R3 away from R2 because "she can’t hear him, she doesn’t understand what he wants" and that the separation was for R3’s "safety." Other than on February 19, Neighbors’ staff did not intervene in any interactions between R2 and R3. Throughout this period, R2 also exhibited inappropriate verbal and physical behavior towards Neighbors’ staff, including trying to kiss them and asking them to "stick your hand down there."
From February 20 to 26, 2014, IDPH conducted a "Complaint Investigation" survey at Neighbors. Its investigation centered on the aforementioned sexual interactions. IDPH determined that Neighbors had violated then-regulation 42 C.F.R. § 483.25(h)2 :
IDPH classified the deficiency as causing "immediate jeopardy" and categorized it as level J.3
IDPH found that Neighbors allowed residents to have consensual sexual interactions and that supervisors told Neighbors’ staff that they were not to intervene or report sexual interactions unless a participant showed outward signs of non-consent. One of Neighbors’ staff members stated that, per Neighbors’ policy, she was taught to "just separate, if no one resisting then it is ok." Another staff member advised that she was "taught to provide privacy and intervene if there is protesting by one of the residents."
Pursuant to IDPH’s findings, CMS fined neighbors $5,150 per day from February 4 to 19, 2014. CMS lowered this fine to $100 per day for the period of February 20 to March 5, 2014, when Neighbors had removed the residents from immediate jeopardy but had not yet returned to substantial compliance. The total penalty amounted to $83,800.
Neighbors challenged the citation and civil monetary penalty and requested a hearing. The parties submitted prehearing briefs with exhibits and testimony. Neighbors’ opposition to the citation centered on the argument that residents, even those with cognitive impairments, have the right to engage in consensual intimate relationships. Neighbors stated that staff was aware of the relationships between the residents and monitored them as necessary.
The ALJ held a videoconference hearing at which he heard testimony from the IDPH surveyor and Neighbors’ former Director of Nursing. After the hearing, the parties submitted posthearing briefs. In a written decision dated July 21, 2017, the ALJ affirmed the citation and penalty.
Regarding the interactions between R1 and R2, the ALJ noted that Neighbors had taken "meager action" to determine whether R2 consented to the interactions, only belatedly inquiring with the residents as to the nature of the interactions. The ALJ noted that R2’s lack of memory as to the incidents was only reflective of his Alzheimer’s and could not be interpreted as consent. Moreover, R1’s denial of any relationship with R2 should have caused concern because it was "at best, misleading." The ALJ concluded that both R1’s and R2’s statements "should have prompted further investigation."
The ALJ concluded that Neighbors’...
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