Nursing Home in Illinois Failed To Adequately Address Sexual Activity Between Cognitively Impaired Residents – Lessons to be Learned

An Illinois nursing home was ordered to pay an $83,800 civil monetary penalty after the Centers for Medicare and Medicaid Services found the facility had failed to adequately address sexual activity between three residents with dementia and/or Alzheimer’s which placed the residents in immediate jeopardy. This case addressed a very important issue of balancing the rights of nursing home residents versus protecting residents from harm.  The citation and fine were based on the United States Department of Health and Human Services contention that the nursing homes’ policy was not to intervene in purported consensual sexual activity between residents although certain activity was observed and documented by the facility’s staff. The nursing home contested the citation and fine arguing that residents, even with cognitive impairments, have a right to engage in consensual relationships and that the residents were monitored as necessary.

The citation and penalty were upheld by an administrative law judge and then affirmed by the Department of Health and Human Services Appeals Board. The nursing home petitioned for judicial review of the final agency decision. The Seventh Circuit affirmed. The court held that substantial evidence supported imposing a citation; the facility’s non-intervention policy prevented any substantive inquiry into a resident’s consent lack thereof, justifying CMS’s determination that this placed residents in immediate jeopardy. The court said that the amount of the fine was reasonable in light of the nursing homes’ culpability in the residents’ conduct and its history of noncompliance with the Medicare Act.

Based upon this court decision, it is important for nursing homes to document all potential harm to residents as well as to have a formal written resident sexual conduct policy at each nursing home, and commit to following the proper protocol.  You can read the court decision at the below link.

NEIGHBORS REHABILITATION CENTER vs.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEPARTMENTAL APPEALS BOARD, and CENTERS FOR MEDICARE AND MEDICAID SERVICES

About Jerry

Jerold E. Rothkoff, a practicing New Jersey and Pennsylvania attorney, is the Principal of the Rothkoff Law Group, an elder care law firm. Jerry dedicates his practice to serving clients in the areas of life care planning, long-term care planning, Medicaid & VA benefits, and advocacy for the elderly and disabled. He is past President of the NJ Chapter of the National Academy of Elder Law Attorneys, former chair of the elder law section of the NJ State Bar Association, and past President of the Life Care Planning Law Firm Association. Jerry continues to be an outspoken advocate for the rights of the elderly and disabled. He writes for and gives presentations regularly to attorneys and other professionals about legal issues related to seniors and those with disabilities. Jerry’s community activities include the Twilight Wish Foundation, the Delaware Valley Stroke Council, the Alzheimer’s Association, as well as numerous other advocacy groups. When not in the office, Jerry spends time with his wife, Erica, and their five children, eighteen-year old identical twin girls, Liza and Julia, fifteen-year old fraternal twin boys, Evan and Gregory, and six-year old Aitan.

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