Health Law Daily SNF’s failure to determine sexual consent put residents in ‘immediate jeopardy’
Monday, December 10, 2018

SNF’s failure to determine sexual consent put residents in ‘immediate jeopardy’

By Jeffrey H. Brochin, J.D.

A DAB decision that an SNF’s failure to adequately address sexual interactions among three cognitively impaired residents resulted in their being placed in "immediate jeopardy" was upheld by a federal appellate court in Illinois. The facility’s policy of intervening only when outward signs of non-consent were displayed was insufficient to determine consent especially where the victim had significant cognitive deficits (Neighbors Rehabilitation Center, LLC v. U.S. Department of Health and Human Services, December 7, 2018, St. Eve, CJ).

Bases of complaint investigation. From February 20 to 26, 2014, the Illinois Department of Public Health (IDPH) conducted a "Complaint Investigation" survey at Neighbors Rehabilitation Center, LLC (SNF) centered on the facility’s handling of incidents of sexual interactions of three residents with dementia and/or Alzheimer’s. One resident was an 80 year-old male suffering from dementia and behavioral disturbances, although he functioned at a high level. The other male resident was a 65-year-old suffering from Alzheimer’s, dementia, behavioral disturbances, and cerebral vascular disease. The third resident was a 77-year-old female suffering from Alzheimer’s who had very low cognitive functioning, other impairments, and was prone to wandering.

On February 4, 2014, a nursing assistant observed the 80-year-old engaging in inappropriate conduct towards the 65-year-old but because she did not see the younger man objecting, she did not intervene. The incident was documented in the nursing notes. A few days later a nurse saw the older resident inappropriately touching the younger resident and although he was not objecting, the nurse told the 80-year-old to leave the room. Later on, the 80-year-old denied the incidents and the 65-year-old could not recall them. On February 11, 19, and 20, 2014, the 65-year-old made inappropriate sexual comments to, and inappropriately touched the 77-year-old female resident. The investigation resulted in an ‘immediate jeopardy’ finding by IDPH and the imposition of an $83,800 penalty. The SNF appealed to the DAB where an ALJ affirmed the citation and penalty, and this appeal followed (see Dementia patients’ failure to resist is NOT consent for sexual encounter, August 15, 2018).

Levels of compliance deficiencies. The court examined the regulatory framework under which 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 serious tags are imposed when there is "immediate jeopardy" to residents, meaning, a situation in which the facility’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.

Policy insufficient to determine consent. The ALJ had concluded that the SNF’s policy of intervening only when outward signs of non-consent were displayed was insufficient to determine consent, especially where, as in the instant case, the victim has significant cognitive deficits. The failure to determine whether the interaction was consensual resulted in a second interaction between the men, and although a nurse did break up that second interaction, she was counseled for her actions. The ALJ also concluded that there was insufficient evidence of consent between the 65-year-old male and the female, noting that despite the SNF’s non-intervention policy, an aide had separated the man and the woman because she was concerned for the woman’s safety.

The appellate court agreed with the ALJ that the SNF took no action thereafter to determine whether the woman had the capacity to consent or had in fact consented to the sexual interactions. Because there was insufficient evidence of consent and a failure to adequately investigate such consent, the ALJ affirmed the citation, and the appellate court likewise affirmed, finding that the "misguided" non-intervention policy left residents at risk of victimization, especially those with severe cognitive or other deficits which may have adversely impacted their ability to actively protest or object. The $83,800 civil monetary penalty was found to be reasonable considering the SNF’s level of culpability, history of noncompliance, and financial condition.

The case is No. 18-2147.

Attorneys: Eva M. Byerley (Generations Healthcare Network) for Neighbors Rehabilitation Center, LLC. Alan S. Dorn, U.S. Department of Health and Human Services, for Centers for Medicare and Medicaid Services and United States Department of Health & Human Services.

Companies: Neighbors Rehabilitation Center, LLC; Centers for Medicare and Medicaid Services; United States Department of Health & Human Services

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