and will wait till everyone is situat this to attention staff at one point had separated the president's staff are trained per their policy but when they separated they were told not to they were told not to separate and lastly voiced a complaint asked to be separated so i don't think you can rely on that because the staff member said no don't do that but the start numbers were also directed to monitor and to ensure the continued consent and to ensure signs of consent that this type i would believe that this step there would be included in the record is the fact that these behaviors were observed and they had been reported to the director but how would absolutely nation by staff members of sexual conduct be evidence of and further ordered by the absence of any assessment or documentation of any power monitoring or planning at the time of the observed incidence and that strongly supports the and absolutely yes we're dealing with patients here with dementia but again at the same time these are patients that were well known to the staff who were working with them these were patients that made their needs and wants known and you are not dealing with staff who  have an understanding of what these residents are that's true let's take the one example that's in the record where one of the staff member separated the resident because she was concerned that there wasn't consent for the sexual activity there's no evidence that anything else was done to monitor that relationship there's no evidence in the record that they went back and poked with the resident to make sure that the resident understood what was going on there's no evidence that they went back to make certain that the resident was capable at that point of consenting there's no evidence that they went back to monitor the relationship so i come back to the first question i asked what in the record supports your argument that your client steps to ensure that there was consent for this sexual activity they were training them not to do anything and last they voice is less think boy stopped action how can that be training them to look out for the present because the training is a little bit more nuanced than just looking for with these residents on a daily basis what about them what about the fact that when there was an observation by the staff member and the staff member separated the two residents that there is no evidence in the record of any kind of follow up how can that support your argument that it was observations and they acted on those observations and i believe that you're referring to the same instance where that staff member was later disciplined work has spoken to about that situation because she spoke up and separated at that point that's not comforting the director of nursing in that situation did follow up on that circumstance out what's in the record that she did anything to go back to those residents and if they were capable of consenting and if they did consent to sexual contact i believe and i don't have the exact number but in the record there is an investigation report that was drafted by the director of nursing again i don't have an exact number and i apologize for that i think it's a myth that the court it was white but that is evidence that shows that the director of nursing did in fact sit down and look at the situation and again there is no requirement that the director of nursing document every single thing that she does you're talking about one we're not talking about every single thing can you think of any other place in society in which the failure to object would constitute concerns i'm afraid that neighbors your point is well taken your honor i understand that but again be looking for signs of consent working for science with views that has come from training that is not merely created by neighbors but has come from other organizations that are well again i go back to the your honour's that at this point neighbors does believe that the department of human services did not meet this evidence at close range and that income before taxes of one hundred forty six thousand six hundred forty but concluded that the penalty of eighty three thousand eight hundred still appropriate w the history of noncompliance did not involve allegations that were similar in nature to the ones alleged here should it be considered excessive to impose a penalt well exceeds the cash and net income of the facility not in this case no i don't believe so that's because there are the history has to do with i'm going encourage the facility to remain in a in a state of compliance with the federal regulations but if they're bankrupt tack and they remain in many things well this  statement did not include the assets or liabilities or the financial information pertaining to the other entity in the variable  an issue with full requiring that nursing homes participate  sexual activity substantial evidence supports the immediate jeopardy citation for scope and some verity and substantial evidence also supports the board's decision which is free of legal error to affirm the eighty three thousand  eight hundred dollars c m p d court noted consistent with the deities or the board's case law the requirements for adequate supervision and in for here neighbors employees who witnessed the incident but failed to speak with the residents about their feelings and their regarding their concerns regarding the relationships they failed to document the residents concerned capacity if they failed to communicate with the resident musicians fail to discuss the incident with the residents family members were responsible parties and failed to report any behavior monitoring three and any other female residents would be handled to protect their safety and dignity neighbors has not identified any assessment or planning regarding residence to the sexual conduct in their policy there was no evidence of the clean nuances regarding the investigation that she spoke of that occurred on february twenty third several weeks after the encounter between resident  found that there was a rational connection between the decision made and the made in conclusions we feel substantial evidence supports the board's decision upholding the findings of non the secretary asked this court to affirm his decision to impose the total c m p d eighty three thousand eight hundred dollars thank you thank you the allegation that it is related to past not complying the situation that was complained of in the prior survey was not at all related to an allegation of abuse or allegation of inappropriate behavior among the