Neighbors Rehabilitation Center, LLC v. U.S. Dept. of Health and Human Services Departmental Appeals Bd.

Record contained sufficient evidence to support decision of Dept. of Health and Human Services Departmental Appeals Bd. that imposed $83,000 penalty on plaintiff-skilled nursing facility for failing to address sexual interactions between three cognitively impaired residents. Record showed that: (1) defendant’s staff was aware of sexual interactions with respect to said residents and broke up said interactions on two occasions; and (2) defendant failed to undertake any investigation to determine whether said interactions were consensual or whether said residents had capacity to give consent. Moreover, Dept. could properly find that defendant’s non-compliance caused immediate jeopardy to said residents, where defendant’s “non-intervention” policy prevented any real inquiry on consent issue except when resident yelled or physically acted out. Also, instant penalty could be based, in part, on defendant’s history of non-compliance with Medicare Act, even where prior instances of non-compliance were not for same exact misconduct.