### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2147

N EIGHBORS R EHABILITATION C ENTER

, LLC,

Petitioner

,

v.

U NITED S TATES D EPARTMENT OF H EALTH AND H UMAN

S ERVICES

, D EPARTMENTAL A PPEALS B OARD

, and C ENTERS FOR

M EDICARE AND M EDICAID S ERVICES

, Respondents

.

____________________

Petition for Review of a Final Decision of the

Department of Health and Human Services.

No. 2859

____________________

A RGUED N OVEMBER 5, 2018

— D ECIDED D ECEMBER 7, 2018

____________________

Before B AUER

, R OVNER

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. Neighbors Rehabilitation Center is a

skilled nursing facility participating in Medicare and Medi

‐

caid. The Centers for Medicare and Medicaid Services

(“CMS”) assessed a civil monetary penalty against Neighbors

after concluding that Neighbors inadequately addressed sex

‐

ual interactions between three cognitively impaired residents.2 No. 18

‐ 2147

CMS determined that Neighbors’ failure to act put the resi

‐

dents in “immediate jeopardy,” and, as a result, issued Neigh

‐

bors a citation and an $83,800 penalty. After a hearing, an ad

‐

ministrative 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 re

‐

view 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 there

‐

fore affirm.

I. Background

Neighbors provides nursing care to residents, including

those with dementia and Alzheimer’s disease. Neighbors par

‐ ticipates in the Medicare program and is subject to compli

‐

ance with the Medicare Act, which CMS monitors.

A. Regulatory Framework

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 require

‐

ments, 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. De

‐

ficiencies are classified by a letter category A

‐ L, with L beingNo. 18

‐ 2147 3

the most severe. The more severe tags are imposed when

there is “immediate jeopardy” to residents. “Immediate jeop

‐ ardy means a situation in which the provider’s noncompli

‐

ance 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:

Rosewood Care Ctr. of Swansea v. Price

, 868 F.3d 605, 609 (7th

Cir. 2017) (chart adapted from CMS, State Operations Manual:

Ch. 7—Survey and Enforcement Process for Skilled Nursing Facil

‐

ities and Nursing Facilities

, available at

https://www.cms.gov/Regulations

‐ and

‐ Guidance/Guid

‐ ance/Manuals/Downloads/som107c07.pdf).

Deficiencies may result in the imposition of a civil mone

‐

tary 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 un

‐

til it returns to substantial compliance. Penalties for “immedi

‐

ate 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 actual4 No. 18

‐ 2147

harm, or caused no actual harm, but have the potential for

more than minimal harm” range from $50

‐ $3,000 per day. 1 Id.

B. Resident Interactions

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 disturb

‐

ances. 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 behav

‐

iors that affected residents and staff.

R2 was a 65

‐ year

‐ old male resident suffering from Alz

‐

heimer’s, dementia, behavioral disturbances, and lower ex

‐ tremity 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 in

‐ cluding asking staff to perform sexual acts and inappropri

‐ ately touching staff. He also physically acted out towards oth

‐

ers and was verbally threatening.

R3 was a 77

‐ year

‐ old female resident suffering from Alz

‐

heimer’s. She had very low cognitive functioning and a severe

hearing impairment. R3 was also prone to wandering.

1 Respondents note that these were the penalties at the time of the citation.

The penalties remain the same in the current version of the regulations.No. 18

‐ 2147 5

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 de

‐

nied 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 separa

‐

tion was for R3’s “safety.” Other than on February 19, Neigh

‐

bors’ staff did not intervene in any interactions between R2

and R3. Throughout this period, R2 also exhibited inappro

‐ priate verbal and physical behavior towards Neighbors’ staff,

including trying to kiss them and asking them to “stick your

hand down there.”6 No. 18

‐ 2147

C. Imposition and Affirmance of the Citation

From February 20 to 26, 2014, IDPH conducted a “Com

‐ plaint Investigation” survey at Neighbors. Its investigation

centered on the aforementioned sexual interactions. IDPH de

‐

termined that Neighbors had violated then

‐ regulation 42

C.F.R. § 483.25(h) 2 :

Accidents. The facility must ensure that—

(1) The resident environment remains as free of ac

‐

cident hazards as is possible; and

(2) Each resident receives adequate supervision and

assistance devices to prevent accidents.

IDPH classified the deficiency as causing “immediate jeop

‐ ardy” 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 sex

‐

ual 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 pro

‐ testing 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,

2 Now codified at 42 C.F.R. § 483.25(d).

3 IDPH initially documented two deficiencies, but later amended its find

‐ ings to delete one of those deficiencies after Neighbors submitted addi

‐

tional documentation to refute that deficiency.No. 18

‐ 2147 7

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 pen

‐ alty and requested a hearing. The parties submitted prehear

‐ ing 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 in

‐ quiring 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 inter

‐ preted 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 state

‐

ments “should have prompted further investigation.”

The ALJ concluded that Neighbors’ policy of intervening

only when outward signs of non

‐ consent were displayed was

insufficient to determine consent, “especially where, as here,

the victim has significant cognitive deficits.” The failure to8 No. 18

‐ 2147

determine whether the interaction was consensual resulted in

a second interaction between R1 and R2. And although a

nurse did break up that second interaction, she was counseled

for her actions.

The ALJ also concluded that there was insufficient evi

‐

dence of consent between R2 and R3. The ALJ noted that, de

‐ spite Neighbors’ non

‐ intervention policy, an aide had sepa

‐

rated R2 and R3 because she was concerned for R3’s safety.

Neighbors took no action thereafter to determine whether R3

had the capacity to consent or had in fact consented to the sex

‐

ual interactions.

Because there was insufficient evidence of consent and a

failure to adequately investigate such consent, the ALJ af

‐

firmed the citation. Turning to the immediate jeopardy ques

‐

tion, he noted that, per 42 C.F.R. § 498.60(c)(2), “CMS’s deter

‐

mination that a deficiency constitutes immediate jeopardy

must be upheld unless the facility shows that the determina

‐

tion is clearly erroneous.” The ALJ reiterated that a finding of

immediate jeopardy does not require actual harm, only a like

‐

lihood of serious harm. The ALJ stated that there was “no

question” that R2 and R3 had been placed in immediate jeop

‐ ardy. Neighbors’ “misguided” non

‐ intervention policy left

residents at risk of victimization, “especially those with se

‐

vere cognitive or other deficits which may have adversely im

‐ pacted their ability to actively protest or object.”

Finally, the ALJ found that the $83,800 civil monetary pen

‐ alty was reasonable considering Neighbors’ level of culpabil

‐ ity, history of noncompliance, and financial condition. See 42

C.F.R. §§ 488.438(f), 488.404.No. 18

‐ 2147 9

Neighbors appealed the ALJ’s decision to the Depart

‐

mental Appeals Board. The Board concluded that the ALJ’s

findings were supported by substantial evidence and his con

‐

clusions were free of legal error. The Board noted that the key

inquiry was not whether the residents could consent to sexual

interactions as a general matter, but whether Neighbors actu

‐ ally assessed whether the residents could consent, deter

‐

mined that they did consent, and monitored the residents to

ensure their continued safety. The Board stated that Neigh

‐

bors’ failure to undertake any such assessment supported the

ALJ’s determination.

II. Discussion

Our review of the Agency’s determination “is limited to

whether the Agency ʹ s conclusion is supported by substantial

evidence.” Rosewood

, 868 F.3d at 615; see also 42 U.S.C.

§§ 1320a

‐ 7a(e), 1395i

‐ 3(h)(2)(B)(ii)(I). “Substantial evidence is

‘such relevant evidence as a reasonable mind might accept as

adequate to support the conclusion reached by the agency.’”

Id. (quoting Dana Container, Inc. v. Sec ʹ y of Labor

, 847 F.3d 495,

499 (7th Cir. 2017)).

Neighbors challenges the Agency’s determinations on (1)

Neighbors’ noncompliance with then

‐ regulation 42 C.F.R.

§ 483.25(h), (2) the immediate jeopardy categorization, and (3)

the reasonableness of the $83,800 civil monetary penalty. We

address each argument in turn.

A. Challenge to the Citation

Neighbors does not dispute that the sexual interactions be

‐

tween R1, R2, and R3 occurred. What Neighbors does dispute

is whether its handling of the interactions was inadequate or

hazardous under then

‐ regulation 42 C.F.R. § 483.25(h).10 No. 18

‐ 2147

Neighbors argues that its policies were sufficient to moni

‐

tor residents’ sexual interactions in a way that “balances both

the resident’s need for privacy and dignity and the safety of

each resident,” and that the staff were taught to look for signs

that a relationship was non

‐ consensual. Neighbors’ former

Director of Nursing testified before the ALJ that all three res

‐

idents were able to show non

‐ consent by yelling, hitting, kick

‐ ing, scratching, or pushing. According to the former Director

of Nursing, Neighbors’ staff worked with these residents

daily and were aware of the behaviors the three residents ex

‐

hibited when they did not want to be touched or interacted

with. In none of the sexual interactions did the residents ex

‐

hibit any of these signs of non

‐ consent.

Certainly, those who reside in long

‐ term care facilities are

entitled to the dignity of maintaining intimate relationships.

It is also true, however, that when those persons are cogni

‐ tively or physically impaired, care must be taken by a facility

to ensure that those intimate relationships are consensual.

The record reflects that Neighbors failed to exercise this care.

The evidence in the record shows only that the staff was

aware of the interactions, and on two occasions, broke up the

interactions. Neighbors’ records show no evidence that it un

‐

dertook any investigation into whether the interactions were

consensual or whether the residents had the capacity to con

‐

sent. As the Departmental Appeals Board aptly stated, the ci

‐

tation was primarily supported by what Neighbors’ staff did

not do:

They did not talk to the residents about their feelings

about these “relationships”; they did not document

the residents’ capacity for consent (or lack thereof)

or communicate with residents’ physicians forNo. 18

‐ 2147 11

medical assessment of how their cognitive deficits

impacted that capacity; they did not discuss the de

‐ velopments with the residents’ responsible parties

and/or families; they did not record any monitoring

of the behaviors or make any care plans to account

for them.

The ALJ’s decision shows that he carefully reviewed the

IDPH survey notes, resident records, both parties’ submitted

testimony, and more. The IDPH survey notes are detailed and

reflect interviews with eleven of Neighbors’ staff members in

‐ cluding administrators, nurses, and aides. The survey notes

detail the relevant entries in the residents’ nursing notes and

describe those entries alongside interview notes regarding

each interaction. The survey notes, and the records they are

based on, reflect that staff did not follow up after the sexual

interactions and continued to follow a non

‐ intervention pol

‐ icy.

Neighbors’ staff did not ask R1 and R2 about their interac

‐

tions until February 20, 2014, the day the IDPH investigation

began and over two weeks after the observation of the first

interaction between R1 and R2. As the ALJ noted, that R1 lied

about the interactions and that R2 had no recollection what

‐

soever were red flags that merited additional investigation.

More alarmingly, Neighbors failed entirely to follow up with

R2 and R3 about their interactions despite one staff member

noting that she was concerned for R3’s safety.

The ALJ repeatedly highlighted the serious cognitive def

‐

icits of R2 and R3 (which were documented in the record) and

observed that these deficits created an even greater need to

investigate whether any abuse was taking place. Yet the rec

‐

ord reflects that no such investigation occurred. Neighbors12 No. 18

‐ 2147

would have us hold that it is appropriate to presume consent

as long as there is no resistance. To do so would be to hold

persons with dementia and Alzheimer’s to a higher standard

than we hold the average person. See, e.g.

, United States v. John

‐

son

, 743 F.3d 196, 199 n.1 (7th Cir. 2014) (noting that, under

Illinois law, resistance is not necessary to prove sexual as

‐ sault); see also United States v. Cobenais

, 868 F.3d 731, 740 (8th

Cir. 2017) (noting that, under 18 U.S.C. § 2241(a), the govern

‐

ment need not show that a sexual abuse victim resisted).

We conclude that the citation is supported by substantial

evidence.

B. Challenge to the Immediate Jeopardy Categorization

We turn next to the categorization of the deficiency as

causing immediate jeopardy. As described above, an immedi

‐

ate jeopardy deficiency is one “in which the provider’s non

‐ compliance

... has caused, or is likely to cause, serious injury,

harm, impairment, or death to a resident.” 42 C.F.R. § 488.301.

The ALJ and the Departmental Appeals Board must uphold

an immediate jeopardy categorization as long as it is not

clearly erroneous, and we review that decision under the sub

‐

stantial evidence standard. See Rosewood

, 868 F.3d at 615, 617;

42 C.F.R. § 498.60(c)(2).

Neighbors argues that the evidence does not support a

finding that its actions were likely to cause harm to its resi

‐

dents. Neighbors claims that, had a staff member, resident, or

anyone else suspected abuse, he would have immediately

acted in accordance with Neighbors’ abuse prevention policy.

Neighbors’ argument is unsupported by the evidence.

Neighbors’ non

‐ intervention policy prevented any real in

‐ quiry into consent, except in the extreme situation where aNo. 18

‐ 2147 13

resident was yelling or physically acting out. Two of Neigh

‐

bors’ staff members separated the residents—staff members

who, according to Neighbors, were familiar with the resi

‐

dents’ capabilities and behavior. Still Neighbors took no steps

to investigate whether any of the residents had been the sub

‐ ject of a non

‐ consensual interaction. In fact, Neighbors did the

opposite, disciplining the nurse who separated R1 and R2 for

violating the non

‐ intervention policy.

Given that Neighbors’ non

‐ intervention policy led to the

recurrence of sexual interactions, we cannot say that the im

‐

mediate jeopardy categorization was unsupported by sub

‐

stantial evidence. To the contrary, the record is replete with

evidence that Neighbors’ deficiency was likely to cause, and

may have actually caused, serious harm to the residents. For

these reasons, we agree with the ALJ and the Departmental

Appeals Board that a categorization of immediate jeopardy

was not clearly erroneous here and is indeed supported by

substantial evidence in the record.

C. Challenge to the Civil Monetary Penalty

Finally, we address Neighbors’ challenge to the amount of

the civil monetary penalty. Neighbors requests that, if we de

‐

cide to affirm the citation, we reconsider the $83,800 penalty.

As long as the basis for imposing a civil monetary penalty

exists, e.g.

, a citation supported by substantial evidence, the

ALJ is not permitted to reduce the penalty to zero. Instead, the

ALJ is limited to reviewing (1) “[t]he facility’s history of non

‐ compliance, including repeated deficiencies” and the rela

‐ tionship of past and present deficiencies; (2) “[t]he facility’s

financial condition;” (3) the deficiency categorization ( i.e.

, A

‐

L); and (4) the facility’s “degree of culpability.” See 42 C.F.R.14 No. 18

‐ 2147

§§ 488.438 (e)

‐ (f), 488.404. Once the ALJ reviews these factors

and determines that the penalty is reasonable, we will uphold

that determination as long as it is supported by substantial

evidence. See, e.g.

, Grace Healthcare of Benton v. U.S. Dep ʹ t of

Health & Human Servs

., 603 F.3d 412, 418 (8th Cir. 2009) (hold

‐ ing that a finding that a civil monetary penalty is reasonable

in amount “must be supported by substantial evidence”).

The ALJ reviewed the relevant factors. He noted that

Neighbors had a history of noncompliance under the Medi

‐

care Act, that Neighbors could afford the civil monetary pen

‐ alty, and that Neighbors was “very culpable” in the incidents

involving R1, R2, and R3. The ALJ further noted that the pen

‐ alty was on the low end of the possible penalties that could

have been imposed. The ALJ concluded that the penalty was

reasonable, and the Departmental Appeals Board upheld the

ALJ’s conclusion. We turn to whether this conclusion was

supported by substantial evidence.

The first factor for consideration is Neighbors’ history of

noncompliance. Neighbors had previously been found to be

deficient under multiple regulations, including the same reg

‐

ulation at issue here, then

‐ regulation 42 C.F.R. § 483.25(h).

Neighbors argues that its past noncompliance was not related

to the noncompliance at issue here and thus “does not show

a pattern of similar noncompliance.” Under the regulations,

however, the lack of a clear pattern is not dispositive. CMS

may consider both previous citations for the same deficien

‐

cies, as well as the facility’s “prior history of noncompliance

in general,” 42 C.F.R. § 488.404(c), and therefore consideration

of Neighbors’ past deficiencies was appropriate, even if it was

not for the exact same misconduct.No. 18

‐ 2147 15

The next factor is the facility’s financial condition. Neigh

‐

bors initially asserted that its financial condition was a reason

to reduce the civil monetary penalty, an argument it does not

raise here. Specifically, Neighbors alleged that the large

amount of the penalty could impact its continued operation.

Because counsel has not raised further concerns about Neigh

‐

bors’ financial condition, we will assume that Neighbors no

longer challenges the penalty under this factor.

The final factors for consideration are the deficiency cate

‐ gorization and the facility’s degree of culpability. Neighbors’

argument that the penalty is not reasonable given these fac

‐

tors is tied to its argument that it was not deficient generally—

i.e.

, because Neighbors’ policy was appropriate and adequate,

it was unreasonable to impose a penalty. We have already de

‐

termined that the citation and immediate jeopardy categori

‐

zation are supported by substantial evidence. We agree that

Neighbors was “very culpable” and we find the penalty to be

reasonable given the degree of harm at issue.

III. Conclusion

For the foregoing reasons, we AFFIRM the decision of the

Departmental Appeals Board.