vs.
Respondent.
) Case No. 03-2560
Pursuant to notice, Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in the above-styled case on October 16, 2003, in Orlando, Florida.
For Petitioner: Gerald L. Pickett, Esquire
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
For Respondent: George F. Indest, III, Esquire
Whether Respondent failed to protect one of the residents of its facility from sexual coercion.
Whether Respondent failed to report the alleged violation immediately to the administrator.
Petitioner, Agency for Health Care Administration, filed an Administrative Complaint on May 30, 2003, alleging that Respondent, Guardian Care, Inc., d/b/a Guardian Care Nursing & Rehabilitation Center, failed to protect one of the residents of the facility, E.G. (hereinafter referred to as "Resident 2"), from sexual coercion and that Respondent failed to report the alleged violation immediately to the administrator. Respondent denied the allegations and timely requested an administrative hearing. This matter was referred to the Division of Administrative Hearings (DOAH) on July 15, 2003, and the case was set for hearing on October 16, 2003.
Prior to hearing, Respondent filed its Unilateral Pre- Hearing Stipulation. At hearing, Respondent filed an Amended Motion for Summary Disposition, which was denied. Respondent's request for official recognition was granted.
At the hearing, Petitioner presented the testimony of Jane Woodson, a surveyor for Respondent, and submitted one exhibit into evidence. Respondent presented the testimony of four fact
witnesses: Sharon Ebanks, registered nurse; Marilyn Harrilal, licensed practical nurse; Ann Campbell, registered nurse; and Michael Annichiarico, administrator. Respondent also called Patricia Collins, registered nurse, as its expert witness in the areas of nursing, long-term care, and nursing home rules and regulations, as well as survey procedures. Respondent submitted four exhibits into evidence. A Transcript of the hearing was filed with DOAH on November 5, 2003. Following the granting of the parties' motion for extension of time, the parties filed their Proposed Recommended Orders on December 15, 2004. Both parties' proposals have been given careful consideration in the preparation of this Recommended Order.
Petitioner is the state agency charged with licensing and regulating nursing homes in Florida, under state and federal statutes.
Respondent is a licensed nursing facility located in Orlando, Florida. Respondent is a small not-for-profit facility, overseen by a voluntary board of directors.
Resident 2 is a Hispanic male, 57 years of age, who speaks English and Spanish fluently. He was a self-admitted resident at Respondent's nursing home facility during the relevant time period. Respondent is a small, not-for-profit facility, overseen by a voluntary board of directors.
Respondent receives its funds to operate through various types of sources such as United Way, City of Orlando, Orange County, and many foundations.
At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida and the assignment of a licensure status. The statute charges Petitioner with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional."
The evaluation, or survey, of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings
on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form.
During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation and indicates the federal scope and severity of the noncompliance. Agency surveyors use the "State Operations' Manual," a document prepared by the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 Code of Federal Regulations (C.F.R.),
Chapter 483.
In March 2003, Petitioner conducted a survey to investigate a complaint that Respondent failed to protect a resident from sexual coercion. The allegation of the deficient practice was based upon an incident involving Resident 2. Pursuant to 42 C.F.R. Section 483.13(b), a nursing facility must assure that a resident has the right to be free from verbal, sexual, and mental abuse. Failure to do so constitutes a deficiency under Florida Statutes.
At hearing, Petitioner presented the testimony of Jane Woodson, nursing program specialist, employed by Petitioner. Woodson testified that she does state and federal surveys in both state and federal licensure and federal institutions to identify or define any noncompliance. She visited Respondent's facility on or about March 26, 2003, and prepared a 2567 form based on her observations, interviews, and record review. It details the results of her investigation, including her interviews with the director of nursing, the administrator, the social worker, the compliance officer, a licensed practical nurse (LPN), and the assistant director of nursing. She also toured the total facility, observed its residents and also observed Resident 2.
Woodson observed that Resident 2 was a well-dressed, alert male, and she spoke to him about the incident on March 15, 2003. Woodson did not have an interpreter present at any time when she interviewed Resident 2, nor did she consider it necessary to do so. At no time did she have any concern that Resident 2 was not mentally competent to understand her when she interviewed him. Woodson was not aware that Resident 2 signed his own financial responsibility forms, patient's rights statement, or that he voluntarily checked himself into the facility. She was not aware that Resident 2 made his own medical decisions in the facility.
Following her investigation, Woodson conducted an exit interview with the administrator, the director of nursing, the assistant director of nursing, the social worker, and the compliance offer. Woodson included in her report a document filled out by Sharon Ebanks (Ebanks), registered nurse (RN), but she did not personally interview Ebanks. She also did not interview Marilyn Harrilal, LPN, nor did she interview the employee involved in the incident. She advised the administrator of her finding a Class II deficiency and provided a correction date of April 17, 2003. She also concluded that this was an isolated incident.
Ebanks was the weekend charge nurse on March 15, 2003, and was in charge of the facility on that date. Ebanks was working on the north wing when she was called by Mr. Daniels, a LPN working on the south wing. Daniels told Ebanks about the alleged incident between Resident 2 and the staff person. Ebanks then called Resident 2; the employee, Marcia Dorsey (Dorsey); and the certified nursing assistants (CNAs),
Ms. Polysaint and Ms. Mezier (first names not in the record), who had witnessed the incident, to the green room. She also asked Harrilal to act as a witness to her interviews with the individuals involved.
Ebanks first spoke to Resident 2 and Dorsey, both of whom stated that nothing had happened. She then questioned the
two CNAs about what they had witnessed. Ebanks concluded, after interviewing both the participants and the witnesses, that the incident was not abuse, but rather, was inappropriate behavior on the part of both Resident 2 and the employee. She based this conclusion on the fact that Dorsey is a trainable Dows Syndrome individual, who was supposed to be working when the incident occurred. Ebanks concluded that Resident 2 had not been abused or hurt in any manner and had participated voluntarily.
Ebanks noted that Resident 2 makes his own medical decisions, is considered to be mentally competent, has never been adjudicated mentally incompetent and has not had a legal guardian appointed for him. Ebanks concluded that
Resident 2 had not been abused. Ebanks testified that she completed a Resident Abuse Report on March 20, 2003, concerning the incident, after being asked to do so by Respondent's compliance officer. The resident abuse report was admitted into evidence as Respondent's Exhibit 1.
At the time of the initial investigation of the incident, Ebanks asked Harrilal to accompany her to the green room. While there, Harrilal listened as Ebanks first questioned Resident 2 and then Dorsey. Both stated that nothing happened. Harrilal then witnessed Ebanks question the CNAs, Polysaint and Mezier. Woodson did not interview Harrilal during her investigation.
Ann Campbell, RN, a nurse for more than 38 years, was functioning in the role of assistant director of nursing on March 15, 2003. She was not in the facility on that day and was not made aware of the incident on the date of its occurrence, but became aware when she returned to work. Campbell is familiar with Resident 2. He was initially admitted with a diagnosis of alcohol abuse and dementia. She observed that he was a little confused and forgetful when first admitted, but has since became more alert and responsive.
Michael Annichiarico, administrator of the facility and custodian of records, including medical records and personnel files, reviewed the personnel file of the employee, Dorsey. There were no disciplinary actions or counseling prior to the incident of March 15, 2003. Annichiarico is familiar with Resident 2 and has interacted with him. Annichiarico testified that, according to the resident's medical record, Resident 2 has never been declared mentally incompetent and that he makes his own medical and financial decisions.
The Progress Note of Gideon Lewis, M.D., dated October 9, 2003, with transcription, was admitted into evidence as Respondent's Exhibit 2 and indicates that Resident 2 is mentally competent and is responsible for his actions as his cognitive functions are intact.
Patricia Collins, RN, testified as an expert in the areas of nursing, long-term care, nursing home rules and regulations, and survey procedures. Collins is a RN, currently working in consulting work. She reviewed documents related to the incident. She went to the facility on two different occasions and interviewed the staff. She also reviewed the documents contained in the report of Woodson's survey. Collins interviewed the two CNAs, Ebanks, Resident 2, the medical records custodian, the director of nursing, the social worker, and Harrilal. She spent approximately four to five hours in the facility.
After speaking with Resident 2, Collins concluded that he was cognitively intact and very alert. He appeared to be mentally competent. Before interviewing Resident 2, Collins reviewed his resident chart and the documents used to sign himself into the facility. She also reviewed physician's orders for medication, progress notes, nurses' notes, the MDS and the care plan. Collins testified that she reviewed the resident's financial responsibility statement and patient's rights statement, both of which were signed by the resident himself. The resident had no legal guardian.
Collins concluded that during the incident of March 15, 2003, there was some inappropriate behavior that needed to be addressed and that this behavior was properly
addressed by staff. The inappropriate behavior was the observation of hugging and kissing between Dorsey and Resident 2 in an empty resident's room while the employee was on duty.
Collins was of the opinion that the behavior was mutual and not abuse. Collins found no reason to conclude that any harm had been done to Resident 2.
Collins testified that a nursing home resident has the right to associate with whomever he desires. He also has the right to have voluntary and willing sexual contact with other people. The inappropriateness in this incident was due to the fact that Resident 2 had involvement with someone with mental deficits. The incident was inappropriate on the part of the employee as well, since she was participating in it during her working time.
Collins disagrees with the findings of Petitioner's surveyor. Collins testified that the investigator should have determined the abuse allegation was unfounded. According to Collins' expert testimony, the facility staff acted appropriately. The CNA who initially observed the activity called another CNA as a witness. They then went to their supervisor, who then went to the ranking nurse at the facility at that point in time, which was Ebanks. Ebanks questioned the employee, Resident 2 and the witnesses. She had the presence of mind to have a witness there as well, which was Harrilal.
Ebanks made the determination, based on her nursing judgment and in her authority as nurse in charge of the facility on that day, that there was inappropriate behavior on behalf of Resident 2 and the employee. She put a care plan in place as to
Resident 2, separated the employee and Resident 2, and sent the CNAs back to work. Collins testified there was no need to report the incident to the Department of Children and Family Services because there was no evidence of abuse or harm to Resident 2. Collins' testimony is found to be credible.
Based on all the evidence, it is found and determined that an incident occurred at Respondent's facility on Saturday, March 15, 2003, at approximately 11:00 a.m., involving Resident
2 and a staff employee of Respondent, Dorsey. Resident 2 and the employee were seen by staff employees sitting on a bed hugging and kissing each other in a resident's room that was not being used at the time. Two CNA employees witnessed and reported the incident to the charge nurse. Ebanks was the charge nurse on duty on March 15, 2003. Ebanks was advised of the incident shortly after it occurred and interviewed both Resident 2 and the employees involved, as well as the employees who witnessed the incident. The interviews were conducted in the presence of Harrilal. She completed a Resident Abuse Report on March 20, 2003, at the request of the risk manager within four business days of the incident, and the administrator was
advised of the incident on the first business day after the incident.
Resident 2 was alert and oriented on the date of the incident. Although he had a low level of dementia, he was mentally competent at the time of the incident. He does not meet the definition of an "elderly person" or "vulnerable adult" under Chapter 415, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002), to conduct a de novo formal hearing involving disputed issues of material fact.
Petitioner is the state agency charged with the responsibility for evaluating nursing home facilities to determine their degree of compliance with established rules and for conducting federally mandated surveys of long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements, made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288.
Petitioner conducts surveys and classifies deficiencies according to the nature and scope of the deficiency to determine whether the licensure status of a nursing home is
"standard" or "conditional," pursuant to Section 400.23, Florida Statutes.
Agency surveyors use a manual prepared by the federal agency found at 42 C.F.R. Chapter 483. 42 C.F.R. Section 483.13(b), states, in relevant part:
The resident has a right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
Florida Administrative Code Rule 59A-4.1288 states in relevant part:
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.
Section 400.147, Florida Statutes (2002), states in relevant part:
Every facility shall, as part of its administrative functions, establish an internal risk management and quality assurance program, the purpose of which is to assess resident care practices; review facility quality indicators, facility incident reports, deficiencies cited by the agency, and resident grievances; and develop plans of action to correct and respond quickly to identified quality deficiencies. The program must include:
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(d) The development and implementation of an incident reporting system based upon the affirmative duty of all health care providers and all agents and employees of
the licensed health care facility to report adverse incidents to the risk manager, or to his or her designee, within 3 business days after their occurrence.
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The internal risk manager of each licensed facility shall:
Investigate every allegation of sexual misconduct which is made against a member of the facility's personnel who has direct patient contact when the allegation is that the sexual misconduct occurred at the facility or at the grounds of the facility;
Report every allegation of sexual misconduct to the administrator of the licensed facility; and
Notify the resident representative or guardian of the victim that an allegation of sexual misconduct has been made and that an investigation is being conducted.
Section 395.0197, Florida Statutes (2002), states in relevant part:
(11) Any witness who witnessed or who possesses actual knowledge of the act that is the basis of an allegation of sexual abuse shall:
Notify the local police; and
Notify the hospital risk manager and the administrator.
For purposes of this subsection, "sexual abuse" means acts of a sexual nature committed for the sexual gratification of anyone upon, or in the presence of, a vulnerable adult, without the vulnerable adult's informed consent, or a minor.
"Sexual abuse" includes, but is not limited to, the acts defined in s. 794.011(1)(h), fondling, exposure of a vulnerable adult's or minor's sexual organs, or the use of the vulnerable adult or minor to solicit for or engage in prostitution or sexual performance. "Sexual abuse" does not include any act intended for a valid medical purpose or any act which may reasonably be construed to be a normal caregiving action.
Section 415.101, Florida Statutes (2002), Adult Protective Services Act, which is enforced by the Department of Children and Family Services, states in relevant part:
(2) The Legislature recognizes that there are many persons in this state who, because of age or disability, are in need of protective services. Such services should allow such an individual the same rights as other citizens and, at the same time, protect the individual from abuse, neglect, and exploitation. It is the intent of the Legislature to provide for the detection and correction of abuse, neglect, and exploitation through social services and criminal investigations and to establish a program of protective services for all disabled adults or elderly persons in need of them. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse, neglect, and exploitation of disabled adults or elderly persons. In taking this action, the Legislature intends to place the fewest possible restrictions on personal liberty and the exercise of constitutional rights, consistent with due process and protection from abuse, neglect, and exploitation. Further, the Legislature intends to encourage the constructive involvement of families in the care and protection of disabled adults or elderly persons.
Section 415.102, Florida Statutes (2002), states in relevant part:
"Abuse" means any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.
"Alleged perpetrator" means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a vulnerable adult.
"Capacity to consent" means that a vulnerable adult has sufficient understanding to make and communicate responsible decisions regarding the vulnerable adult's person or property, including whether or not to accept protective services offered by the department.
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(8) "Facility" means any location providing day or residential care or treatment for vulnerable adults. The term "facility" may include, but is not limited to, any hospital, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, or mental health treatment center.
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"Lacks capacity to consent" means a mental impairment that causes a vulnerable adult to lack sufficient understanding or capacity to make or communicate responsible decisions concerning person or property, including whether or not to accept protective services.
"Neglect" means the failure or omission on the part of the caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.
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"Sexual abuse" means acts of a sexual nature committed in the presence of a vulnerable adult without that person's informed consent. "Sexual abuse" includes, but is not limited to, the acts defined in
s. 794.011(1)(h), fondling, exposure of a vulnerable adult's sexual organs, or the use of a vulnerable adult to solicit for or engage in prostitution or sexual performance. "Sexual abuse" does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate display of affection.
"Victim" means any vulnerable adult named in a report of abuse, neglect, or exploitation.
"Vulnerable adult" means a person
18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, physical, or developmental
disability or dysfunctioning, or brain damage, or the infirmities of aging.
Section 794.011, Florida Statutes (2002), Sexual Battery states in relevant part:
As used in this chapter:
"Consent" means intelligent, knowing, and voluntary consent and does not include coerced submission. "Consent" shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.
"Mentally defective" means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.
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(d) "Offender" means a person accused of a sexual offense in violation of a provision of this chapter.
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"Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.
"Victim" means a person who has been the object of a sexual offense.
Section 400.23(7), Florida Statutes (2002), states in relevant part:
. . . The agency shall assign a licensure status of standard or conditional to each nursing home.
A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.
A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.
Section 400.23(8), Florida Statutes (2002), states in relevant part:
The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the
problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
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(b) A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of
$2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
The Center for Medicare and Medicaid Services (CMS), State Operations Manual (SOM), Appendix P, Guidance for Surveyors, states in relevant part:
Intent: § 483.13(b)
Each resident has the right to be free from abuse, corporal punishment, and involuntary seclusion. Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff or other agencies serving the resident, family
members or legal guardians, friends, or other individuals.
Guidelines: § 483.13(b) and (c)
"Sexual abuse" includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.
Section 400.022, Florida Statutes, Residents' Rights, reds in pertinent part:
All licensees of nursing home facilities shall adopt . . . a statement of the rights and responsibilities of the residents of such facilities . . . The statement shall assure each resident the following:
The right to civil . . . liberties, including . . . the right to independent personal decision . . .
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(m) The right to have privacy . . .
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(o) The right to be free from mental and physical abuse . . .
The burden of proof in this case is on Petitioner.
See Beverly Enterprises - Florida v. Agency for Health Care
Administration, 745 So. 2s 1133 (Fla. 1st DCA 1999). The burden of proof for the assignment of a licensure status is by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative
Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The Burden of proof to impose an administrative fine is by clear and convincing evidence. Department of Banking and Finance v.
Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
Subsection 120.57(1)(c), Florida Statutes, provides that hearsay evidence shall not be sufficient in itself to support a finding of fact unless it would be admissible over objection in civil actions. Durall v. Unemployment Appeals Commission, 743 So. 2d 166, 168 (Fla. 4th DCA 1999). See also Arnold v. State, 497 So. 2d 1356, 1357 (Fla. 4th DCA 1986) for the unrelated but analogous case of a probation revocation proceeding in which hearsay is admissible but must be supported by other competent non-hearsay evidence; and L. R. v. State, 557 So. 2d 121, 122 (Fla. 3rd DCA 1990).
Pursuant to Section 400.23(7)(b), Florida Statutes (2002), to assign a conditional licensure status to a facility, Petitioner must show that, at the time of the survey, the facility was not in substantial compliance with the criteria established under Part II of Chapter 400 of the Florida Statutes. Substantial compliance is not defined in this Part. It can be argued that substantial compliance with a particular statute, rule, standard, or requirement under this Part would mean assuring that a particular known and identified hazard, such as sexual assault by nursing home staff, that causes, or
may cause, injury to the residents, would be closely monitored and steps taken to prevent injury to the residents from that known and identified hazard.
42 C.F.R. Section 483.301 is instructive in defining substantial compliance to mean:
[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.
It is clear that the Legislature has identified sexual abuse as a known risk to long-term care residents. Accordingly, as a minimum, action must be taken to abate the source of that risk. The Legislature has issued its mandate that those nursing home residents whose ability to provide for his or her own care or protection is impaired due to a mental disability or dysfunctioning, is a "vulnerable adult" requiring protection from a nursing home facility.
However, in this instance, Petitioner has failed to prove that Resident 2 is either an "elderly person" or "vulnerable adult" as defined in Section 415.102, Florida Statutes. The greater weight of evidence indicates that Resident 2 is fully functional, makes his own medical and financial decisions, and was able to help around the facility. He has never been adjudicated mentally incompetent and has never had a legal guardian appointed for him. In addition, although
some witnesses described Resident 2 as having a "bit of dementia," Petitioner did not offer persuasive non-hearsay evidence that Resident 2 had a diagnosis of dementia, was cognitively impaired, or lacked the capacity to consent to participate in the sexual activity observed on March 15, 2003. The only testimony relating to the incident was that Resident 2 and Dorsey were seen "kissing and hugging." The evidence does not indicate that the sexual advance was unsolicited or unwanted, and it appeared to be consensual. Therefore, under either standard of proof, Petitioner has failed to prove that Resident 2 was subjected to sexual coercion or abuse, or that Respondent was guilty of a Class I or II deficiency.
The evidence is persuasive that Respondent's staff's response regarding the incident was appropriate. Respondent immediately and adequately investigated this matter and acted appropriately to ensure that this isolated incident is not repeated. Respondent was in substantial compliance with the requirements of Section 400.147, Florida Statutes.
As such, Petitioner's allegation of a Class II deficiency by Respondent is without merit, and Petitioner should assign a standard licensure status to Respondent for the period March 26, 2003, and ending April 28, 2003.
Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case.
DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004.
George F. Indest, III, Esquire The Health Law Firm
Gerald L. Pickett, Esquire
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
