The Issue The issue in this case is whether Respondent, Jose Anibal Cruz, M.D., committed the violations alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on December 30, 2002, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice in Florida. Respondent, Jose Anibal Cruz, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been licensed in Florida since 1975. His license number is 0025019. Dr. Cruz received his medical degree in October 1967. He has been practicing medicine for a period of 36 years, including his time in training. During his career, Dr. Cruz has served as Chief of Geriatric Psychiatry at South Shore Hospital, Miami, Florida, and as Medical Director of the Psychiatric Out-Patient Rehabilitation Program with South Shore Hospital and the University of Miami. Dr. Cruz's Practice. At the times material to this matter, Dr. Cruz specialized in the practice of general psychiatry.3 At the times material to this matter, Dr. Cruz maintained an office at either 8740 North Kendall Drive, Miami, Florida, or 1540 Washington Avenue, Miami Beach, Florida.4 Patient M.R. On or about January 4, 1994, Dr. Cruz began providing care to M.R., a female, who was born on May 21, 1962. When she began seeing Dr. Cruz for treatment, she was 31 years of age. When M.R. discontinued receiving treatment from Dr. Cruz on or about August 16, 2001, she was 39 years of age. When M.R. first presented to Dr. Cruz, she had a history of bipolar disorder and manic-depressive disorder. M.R. was considered disabled due to her bipolar disorder. She complained of symptoms indicative of depression. Dr. Cruz diagnosed M.R. with manic-depressive illness, in remission. Dr. Cruz treated M.R. for manic-depression from January 1994 until August 2001, seeing her at least once a month for pharmacological management5 and brief reality-oriented therapy sessions. From the beginning of Dr. Cruz's treatment of M.R., he began making inappropriate, flirtatious comments to her, including comments about her hair and physical appearance. Dr. Cruz also began to hug M.R. and on several occasions, he became sexually aroused to a point where M.R. could feel his erect penis. Dr. Cruz eventually began to ask M.R. to bring him pictures of herself wearing a bathing suit or in the nude. After Dr. Cruz moved his office to the Miami Beach location, Dr. Cruz began to masturbate in front of M.R. during her visits. Eventually, Dr. Cruz asked M.R. to perform oral sex on him during her visits, a request that she obeyed. On five occasions, Dr. Cruz hospitalized M.R. in the psychiatric unit at Cedars Medical Center (hereinafter referred to as the "Psychiatric Unit"), where Dr. Cruz regularly performed rounds. Patients in the Psychiatric Unit were monitored on a regular basis. Staff conducted rounds with each patient at 15- minute intervals, beginning on the hour. The nursing station also had an audio monitoring system, which allowed the nurses to listen in on a patient's room. Only one room could be monitored at a time, however.6 When a physician was with a patient in the Psychiatric Unit, staff generally would not interrupt the physician, although the door to the patient's room was usually left open in case the physician has any difficulty with the patient. Each patient in the Psychiatric Unit had a private room, with a private bathroom. There was a door on the room and the bathroom, but neither could be locked from the inside. If a patient was in the bathroom when staff made rounds, staff would knock on the door, but not open it if the patient responded. During some of the times when M.R. was hospitalized in the Psychiatric Unit, Dr. Cruz would telephone her, tell her when he would be making rounds, and tell her to be in the shower bathing when he arrived. She would comply with his directions and when he arrived, he would enter the bathroom where he would masturbate while watching M.R. bathing. Dr. Cruz would also masturbate in front of M.R. while visiting her in the Psychiatric Unit at times other than when she was instructed to be in the shower. Dr. Cruz's inappropriate behavior eventually progressed to having sexual intercourse with M.R. Dr. Cruz, in order to facilitate their sexual relationship, told M.R. to start coming in as the last patient of the day.7 After her appointment, M.R. would leave the office, Dr. Cruz would pick her up around the corner from the office, and he would take her to the Starlite East Motel (hereinafter referred to as the "Starlite"). On other occasions, Dr. Cruz would have M.R. wait for him at a Winn-Dixie grocery store (hereinafter referred to as the "Grocery Store") located on Northwest 12th Avenue, close to Cedars Medical Center. On these occasions, Dr. Cruz would pick up M.R. and take her to the Starlite. The Starlite, located at 135 Southwest 8th Street, Miami, Florida, is a motel where rooms may be rented by the hour or longer periods of time, including overnight. Greater than three-fourths of the Starlite's guests rent by the hour. On those occasions when Dr. Cruz took M.R. to the Starlite, he would usually park his car in the motel parking lot, leave her in his car, register for a room, using a fictitious name,8 and then park his car nearer the room. While at the Starlite, Dr. Cruz and M.R. would engage in sexual intercourse. On one occasion, after engaging in sexual intercourse at the Starlite, Dr. Cruz gave M.R. two twenty-dollar bills which he told her to use to buy herself something.9 M.R. declined taking the money. Dr. Cruz. engaged in sexual intercourse with M.R. on as many as 25 to 30 occasions. Surveillance of Dr. Cruz and M.R. At some time during 2001, M.R. confessed her sexual relationship with Dr. Cruz to a friend, who suggested that what Dr. Cruz was doing was wrong and that she should sue him. M.R. took her friend's advice, selected a law firm out of the phone book, and contacted an attorney. After telling the attorney about her sexual relationship with Dr. Cruz, the attorney hired a private investigator to conduct video surveillance of M.R. and Dr. Cruz. The private investigator arranged a meeting with M.R. during August 2001 to discuss the surveillance. M.R. met with two investigators and discussed her relationship with Dr. Cruz and their routine. It was decided that a rendezvous would be arranged with Dr. Cruz on August 16, 2001, a date on which M.R. had an appointment to see Dr. Cruz to renew a medication prescription. It was expected that M.R. would leave the office and that Dr. Cruz would then pick her up around the corner and take her to the Starlite. The investigators were positioned outside Dr. Cruz's office on August 16, 2001, at the time of her appointment. Dr. Cruz, however, told M.R. to telephone him later to make arrangements to meet the following day, instead of going to the Starlite the day of her appointment. When she told him she did not have any minutes on her cellular telephone,10 Dr. Cruz, as he often had before, gave her $50.00 to purchase minutes to be used on the phone.11 Upon leaving the office, M.R. went to a nearby store where she purchased cellular telephone minutes. One of the private investigators, who was expecting M.R. to be picked up by Dr. Cruz and was, therefore, watching the office that day, followed M.R. When he saw her go into the store, he followed her in. The investigator approached M.R. and she told him that Dr. Cruz had told her that he could not take her to the Starlite that day. M.R. and the investigator left the store and went to lunch, where they were joined by the second investigator. While at lunch, Dr. Cruz called M.R. on her cellular phone and told her that he would pick her up at the Grocery Store the following day, August 17, 2001.12 After the telephone call with Dr. Cruz ended, M.R. informed the investigators that she had agreed to be picked up the following day at the Grocery Store. On August 17, 2001, the two investigators positioned themselves in the Grocery Store parking lot where they could see M.R., who was sitting on a bench in front of the store. They video recorded M.R. giving a prearranged signal when Dr. Cruz first entered the parking lot, stopping to pick up M.R., and then left. The investigators lost Dr. Cruz in traffic, so they went directly to the Starlite, where they next recorded Dr. Cruz's automobile, with Dr. Cruz and M.R. in it, entering the parking lot. Upon arriving at the Starlite, Dr. Cruz parked his car, leaving M.R. in it, and proceeded to the office. Upon returning from the office, getting into his car, starting the engine, and placing the car in reverse, the investigators drove up behind his car, blocking his exit. One of the investigators went to the passenger side of Dr. Cruz's car, took M.R. out, and then put her in the investigators' car,13 and they then departed. The Department's Administrative Complaint and Dr. Cruz's Request for Hearing. On December 30, 2002, after investigating M.R.'s allegations, the Department filed a four-count Administrative Complaint against Dr. Cruz alleging that he had: (a) exercised influence within a patient-physician relationship for purposes of engaging a patient in sexual activity in violation of Section 458.331(1)(j), Florida Statutes (Count One); (b) violated the express prohibition against sexual misconduct set out in Section 458.329, Florida Statutes, and Florida Administrative Code Rule 64B8-9.008 (Count Two); (c) failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions in violation of Section 458.331(1)(t), Florida Statutes (Count Three); and (d) failed to keep written medical records justifying the course of treatment of M.R., in that his notes are partially illegible and/or are cursory and generic, in violation of Section 458.331(1)(m), Florida Statutes (Count Four). On or about January 8, 2003, Dr. Cruz, through counsel, mailed a Request for Formal Hearing to the Department, indicating that he disputed all material facts alleged in the Administrative Complaint, except those pertaining to jurisdiction and licensure, and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes (2002). On January 9, 2003, the matter was filed with the Division of Administrative Hearings, with a request that the case be assigned to an administrative law judge. The matter was designated DOAH Case No. 03-0056PL, was initially assigned to Administrative Law Judge Claude B. Arrington, and was later transferred to the undersigned. Counts One through Three; Sexual Misconduct. The first three counts of the Administrative Complaint are specifically alleged to be based upon the following facts: Demanded oral sex from Patient M.R. under threat of withholding her prescriptions; Engaged in sexual intercourse with Patient M.R.; Masturbated in Patient M.R.'s presence; Invited Patient M.R. to engage in sexual relations with him and a third party; Asked for naked photographs of Patient M.R.; and/or Groped Patient M.R.'s breasts and groin in his office during sessions. All of these factual allegations, except paragraphs a., d., and f. have been proved. Physicians are responsible for maintaining the appropriate physician-patient relationship, a responsibility each physician is responsible for understanding. This relationship involves "boundaries" which the physician should understand are not to be crossed.14 Engaging in the activities listed in finding of fact 40 b. through c. and e. with M.R. constituted the exercise of influence over M.R. within the patient-physician relationship for the purpose of engaging a patient in sexual activity. Trust plays a significant part in the physician- patient relationship, and especially in the psychotherapist- patient relationship. According to George M. Joseph, M.D., whose testimony has been credited, trust "plays a very important role, probably a prime role, primal important role. " There is also a difference in the "power" of the psychotherapist and the patient. While each has some power, according to Dr. Joseph, the doctor, traditionally, is viewed as an individual with, obviously, more of the power. He is the treating person. He is the one getting paid. He is the one with the knowledge and the experience. And he is the one directing the treatment. In addition to that, over time in psychotherapy, he acquires the power of the patient's transference, which often pictures him or her in a sort of parental role. Because of the power a psychotherapist has over a patient, that power can be exploited to influence a patient to cross the sexual boundary which the psychotherapist should maintain. When a psychotherapist crosses that sexual boundary and exploits a patient, the trust necessary to maintain a proper psychotherapist-patient relationship is destroyed, the patient may become traumatized, and a patient with depressive illnesses may experience an exacerbation of psychotic or manic symptoms. In this matter, due to the activities described in finding of fact 40 b. through c. and e., Dr. Cruz violated the proper psychotherapist-patient relationship, abused his power over patient M.R., exploited her for his own pleasure, destroyed her trust in him, and caused her emotional distress, nightmares, sleeplessness, confusion, and depression. Dr. Cruz's sexual involvement with M.R. constituted the exercise of influence within a physician-patient relationship for purposes of engaging a patient in sexual activity and constituted sexual misconduct in the practice of medicine. Dr. Cruz's sexual involvement with M.R., as found in finding of fact 40 b. through c. and e., constituted the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. 49 As to paragraph a., supra, while the evidence proved that Dr. Cruz had M.R. visit his office once a month in order to obtain a refill of the medications he prescribed for her, the evidence failed to prove that Dr. Cruz threatened to withhold her prescriptions if she refused to perform oral sex on him.15 Count Four; Dr. Cruz's Medical Records. According to Dr. Joseph, whose opinion16 with regard to Dr. Cruz's medical notes is accepted: The physician's notes are at best only partially legible to this reviewer. The notes appear cursory, and generic. They continually repeat terms such as: "Depressed, anxious, tense, despondent, dejected, hopeless, low self-esteem, sad, helplessness. There appears to be little reference in the notes to current life issues, psychodynamics or specific medication effects. Deposition Exhibit 2 to Respondent's Exhibit 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Jose Anibal Cruz, M.D., has violated Sections 458.331(1)(j), (m), (t), and (x) (by violating Section 458.329, Florida Statutes, and Florida Administrative Code Rule 64B8-9.008) as alleged the Administrative Complaint; and revoking Dr. Cruz's license to practice medicine. DONE AND ENTERED this 15th day of April, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2004.
The Issue Whether the Respondent's license as a skilled nursing facility should have been changed to conditional effective January 28, 1998, and March 30, 1998.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency for Health Care Administration is the state agency responsible for licensing and regulating the operation of nursing home facilities. Chapter 400, Part II, Florida Statutes (1997). Edgewater Manor, located at 9555 Southeast Federal Highway, Hobe Sound, Florida, is a 120-bed facility licensed to operate as a nursing home pursuant to the provisions of Chapter 400, Part II, Florida Statutes, and the rules found in Chapter 59A-4, Florida Administrative Code. Edgewater Manor also participates in the federal Medicare and Medicaid programs. Edgewater Manor was rated superior from 1991 through 1994, and in 1997; it was rated standard in 1995 and 1996. The Agency conducted a survey of Edgewater Manor with an exit date of January 28, 1998, for the purpose of determining the degree of compliance with the applicable criteria. As a result of the January 28, 1998, survey and insofar as is relevant to the instant proceeding, the Agency cited Edgewater Manor for two violations relating to the quality of care provided its residents, classified the violations as Class II deficiencies, assigned Edgewater Manor a conditional rating, and issued Edgewater Manor a conditional license effective January 28, 1998, through February 28, 1998. The Agency conducted a follow-up survey with an exit date of March 30, 1998. The two Class II deficiencies identified during the January 28 survey had been corrected, but Edgewater Manor was cited for another violation relating to the quality of care provided its residents, and the new violation was classified as a Class II deficiency. A conditional rating was assigned, and a conditional license was issued effective March 30, 1998, through February 28, 1999. A follow-up survey was conducted on June 4, 1998, and the Agency found that all previously cited deficiencies had been corrected, a standard rating was assigned, and a standard license was issued. When the Agency prepares to conduct a compliance survey of a nursing home, a team of surveyors is selected, which meets and reviews documentation which includes the facility's history of deficiencies and its resident census. The team then takes an orientation tour of the facility, led by a staff member. After the orientation tour, the team selects its Phase I sample of residents to review; the Phase I review includes both comprehensive and focused reviews. A focused review is conducted when the team selects a particular resident with certain identifiable conditions which fall within the team's areas of concern. After the Phase I review is completed, a Phase II review is conducted, in which the team performs only focused reviews of particular residents. After the facility survey is completed, the team meets to discuss the results of the investigation and to evaluate the results to determine if the nursing home is in compliance with the applicable statutes, rules, and regulations. Violations are assessed in accordance with the criteria set forth in the State Operations Manual, which is published by the federal Health Care Financing Agency and provides guidance to state surveyors in interpreting and applying the federal rules and regulations applicable to nursing homes. The State Operations Manual, Guidance to Surveyors, includes "tag numbers" corresponding to provisions of the rules found in Title 42, Chapter 483, Code of Federal Regulations. In the State Operations Manual, a "tag number" is assigned to each provision of the federal rules, and the intent of the rule provision is set forth, together with guidelines, procedures, and probes which are to be used by the state surveyors in determining whether a particular rule provision has been violated. The parties stipulated that the deficiencies cited in the surveys were based on violations of tag F223, corresponding to Title 42, Section 483.13(b) Code of Federal Regulations; tag F224, corresponding to Title 42, Section 483.13(c)(1)(i), Code of Federal Regulations; tag F225, corresponding to Title 42, Section 483.13(c)(1)(ii), Code of Federal Regulations; tag F250, corresponding to Title 42, Section 483.15(g), Code of Federal Regulations; and tag F314, corresponding to Title 42, Section 483.25(c)(1) and (2), Code of Federal Regulations. Unfortunately, neither party offered into evidence the reports of the surveys referenced herein, in which the factual bases for each violation were set out. Accordingly, for purposes of the findings of fact herein, the specific nature of the violations alleged against Edgewater Manor could only be derived from the testimony of the two Agency surveyors who testified at the hearing. DOAH Case No. 98-1270: January 28, 1998, survey Resident 34 With regard to Resident 3, the Agency cited Edgewater Manor for a Class II deficiency based on violations of tag F223, tag F224, tag F225, and tag F250, as a result of the January 28, 1998, survey. The tag F223 violation is associated with the requirement of Title 42, Section 483.13(b), Code of Federal Regulations, that residents of long-term care facilities have the right to be free from abuse. The tag F224 violation is associated with the requirements of Title 42, Section 483.13(c)(1)(ii), (iii), and (2) through (4), Code of Federal Regulations, that a facility must develop and implement policies to prohibit abuse, neglect, and mistreatment, and not use abuse to control its residents. The tag F225 violation is, in this case, associated with the requirements of Title 42, Section 483.13(c)(2), (3), and (4), Code of Federal Regulations, that facility staff must report and investigate suspected abuse, neglect, or mistreatment. The tag F250 violation is associated with the requirement in Title 42, Section 483.15(g), Code of Federal Regulations, that a facility must provide social services to maintain the well-being of the residents. Resident 3 became a resident of Edgewater Manor on September 24, 1990. His diagnoses as of September 1992 included organic mental syndrome, arteriosclerotic heart disease, chronic obstructive pulmonary disease, dementia, Parkinson's disease, and depression. At the time at issue herein, Resident 3 lived in Room 124, which is in Edgewater Manor's Protective Care Unit. He had lived in Room 124 for quite a while before the unit where that room was located was converted to the locked Protective Care Unit. When asked before the conversion if he wanted to move to another unit, he chose to remain in Room 124. In the opinion of Janice Bey, Edgewater Manor's Director of Nursing, he was appropriate for the unit because he had been diagnosed with dementia secondary to Parkinson's disease. In 1997 and 1998, Resident 3's thought processes were impaired as a result of the dementia associated with Parkinson's disease, which was by that time in an advanced stage. In four Minimum Data Sets (comprehensive assessments) completed for Resident 3 from April 1997 through December 1997, it was noted that he was capable of independently making decisions regarding the tasks of daily life; that his short- and long-term memory was "OK"; that he had no indicators of periodic disordered thinking or awareness; and that he consistently exhibited inappropriate behavior but that the behavior was easily altered. Socially inappropriate behavior, as used in the Minimum Data Set, includes sexual behavior. At the time at issue herein, Resident 3 walked with a shambling gait, and his ability to ambulate was impaired by spasticity associated with Parkinson's disease. Numerous entries in the Nursing Care Notes for Resident 3 reflect that he was found on the floor of his room or in the hall after falling or losing his balance and sliding down the wall to the floor. He suffered from obvious tremors in his hands, which increased in severity when he was agitated or excited. Resident 3 was treated with Sinemet for his Parkinson's disease, a drug which has a noted side-effect of hypersexuality. He was referred for a psychiatric consultation in 1995 because he exhibited inappropriate sexual behavior. At the time at issue herein and notwithstanding the assessment included in the Minimum Data Set, Resident 3 was observed to experience periods of confusion regarding time and place, even though, at various times during the day, he appeared oriented as to time, place, and person. He was capable of independently making decisions concerning the basic activities of daily living, such as when to eat, when to sleep, and when to go to the bathroom. Resident 3 was not, however, able to make decisions requiring the exercise of judgment because, as a result of his dementia and impaired cognitive ability, he could not evaluate the consequences of such decisions. Resident 3 acted primarily to fulfill his basic needs. Inappropriate sexual behavior involving staff. Entries in the Nursing Care Notes maintained for 1997 and early 1998 by the nurses on the Protective Care Unit and in the Social Progress Notes maintained for the same time period by Edgewater Manor's social services director document a number occasions on which Resident 3 engaged in inappropriate sexual behavior toward female staff. According to the reports, this behavior was directed especially at certified nursing assistants and occurred primarily as they provided direct care. Resident 3 reportedly attempted to kiss the certified nursing assistants, grabbed at and actually grabbed their breasts and other private parts, pinched their buttocks, and exposed himself and masturbated in front of them. Resident 3 reportedly cornered one certified nursing assistant in his room, and she had to crawl over his bed to escape. Instances involving such behavior directed to staff were noted to have occurred on December 11, 1996; on January 9, February 11, March 6, July 8, August 29, and December 30, 1997; and on January 24, 1998. Inappropriate behavior toward staff members was also noted in the 1997 monthly summaries included in the Nursing Care Notes for March, April, May, June, July, August, September, October, and December. Kelly Streich, the social services director at Edgewater Manor, was notified of some of the instances of inappropriate sexual behavior involving staff. She was notified of an instance involving staff which took place on December 11, 1996, and she responded by notifying Resident 3's sister-in-law and requesting that her husband, Resident 3's brother, talk with him about the behavior. The sister-in-law suggested that Resident 3 should be seen by his physician and by a male psychologist. According to Ms. Streich's notes, Resident 3 denied that his behavior towards staff was serious. On December 18, 1996, Ms. Streich noted a nurse's report that Resident 3 had not exhibited any inappropriate sexual behavior since December 11 and that, in the nurse's opinion, a psychological consultation was not necessary. Later on December 18, Ms. Streich reported that Resident 3 was seen by his physician and promised that he would not make sexual advances to the staff in the future. Resident 3 was not seen by a psychologist at this time due to his promise that he would stop engaging in offensive behavior. After being notified of the behavior involving staff which occurred January 9, 1997, Ms. Streich again notified Resident 3's family and his physician. She also reviewed Resident 3's care plan and modified it to provide that she continue to monitor Resident 3 and to make one-to-one visits and provide counseling. Primarily, however, Ms. Streich determined that staff should continue to discourage Resident 3's inappropriate sexual behavior and that his physician should speak with him again. Resident 3's annual review was completed in April 1997. In her notes, Ms. Streich reported that Resident 3's cognitive status remained the same and that he was alert and oriented as to time, place, and person. She described Resident 3 as "isolative" and noted that he preferred watching television in his room to interacting with other residents. Ms. Streich also observed that he continued to have episodes of inappropriate sexual behavior and that the staff continued to discourage this behavior. Ms. Streich testified that she should also have noted that Resident 3 sometimes exhibited confused thought processes. In the care plan developed as a result of this annual review and dated April 11, 1997, it was noted that Resident 3 had difficulty with "individual coping" which was "evidenced by inappropriate sexual behavior related to Cognitive impairment." The interventions identified in the care plan to reach the stated goal that Resident 3 would "not exhibit inappropriate sexual gestures to staff by next review," included the following: Be firm but gentle when correcting resident's inappropriate sexual behavior Monitor & document inappropriate behavior Discourage all inappropriate behavior of resident with staff Provide 1:1 individual visits In an entry dated June 25, 1997, Ms. Streich observed as part of her quarterly review of Resident 3's care plan that he continued to exhibit inappropriate sexual behavior. She further noted: "Staff continues to tell him this behavior is unacceptable." Ms. Streich determined that the care plan did not need to be changed and that she would continue to provide one-to- one supportive visits. In her quarterly review recorded September 20, 1997, Ms. Streich noted that Resident 3 "occasionally display[ed] inappropriate sexual gestures." Ms. Streich determined that no changes were needed to his care plan and that staff should continue to discourage Resident 3's inappropriate sexual behavior. In her quarterly review recorded December 19, 1997, Ms. Streich noted that Resident 3 "continues to be inappropriate at times sexually - displays gesture to direct care staff." She recommended that no change be made to his care plan and indicated that her one-to-one supportive visits would continue and that appropriate behavior would be reinforced. Inappropriate sexual behavior toward staff in a long- term care facility, and especially in a protective care unit for patients suffering from dementia, is not unusual. Edgewater Manor had guidelines directing staff how to handle residents who engaged in inappropriate sexual behavior and provided its staff with in-service training for avoiding and redirecting this behavior. Inappropriate sexual behavior with residents. The Nursing Care Notes and Social Service Notes document instances of Resident 3's sexual behavior involving female residents of the Protective Care Unit. The Agency surveyor was particularly concerned with reports of Resident 3's behavior with three residents of the Protective Care Unit, Resident 18, Resident 19, and Resident 20. Resident 18 When Resident 18 was admitted to Edgewater Manor on June 16, 1997, she was an eighty-five-year-old widow who suffered from Alzheimer's disease. She had short- and long-term memory problems and was moderately impaired in her ability to make decisions regarding activities of daily living. Resident 18 was ambulatory and was very social and outgoing, appearing to enjoy interacting with others, especially men, and she would sometimes escort other residents to her room for conversation. Ms. Streich reported in the Social Service Notes for Monday, June 30, 1997, that, on the previous Friday and Saturday nights, Resident 18 was found in her room with Resident 3 in what were described in Ms. Streich's notes as "various sexual positions." Both Resident 3 and Resident 18 were lying fully clothed in Resident 18's bed during these encounters. On both occasions, Resident 18 resisted when staff separated them. Ms. Streich did not personally observe the encounters, and she did not interview the nurse reporting the encounters to learn what was meant by "various sexual positions." Ms. Streich contacted H. F., Resident 18's daughter, on June 30 regarding her mother's behavior and asked that the family decide if staff should continue to separate Resident 3 and Resident 18 should they attempt to engage in any further intimate contact.5 In her notes dated July 1, 1997, Ms. Streich reported that Resident 18's family had decided that Resident 3 and Resident 18 should be allowed to continue their relationship. A note was added to Resident 3's care plan by the care plan team that "condoms available from floor nurse," and an addition was made to Resident 18's care plan on July 7, 1997, by the care plan team, to address "DESIRE FOR AN INTIMATE RELATIONSHIP WITH ANOTHER RESIDENT." The care plan provided that Resident will participate in a safe sexual encounter as she wishes. Provide resident with a safe, private room Provide condoms on request Family will be kept aware of situation Condoms available from floor nurse. In H. F.'s opinion, her mother might have Alzheimer's disease and be forgetful, but she still has her personality and would not do anything she did not want to do. H. F. believed at the time at issue herein that her mother was capable of consenting to intimate contact, including sexual intercourse. Although H. F. believed it absurd to think that her mother would want to have sexual intercourse, she also thought it was responsible of Edgewater Manor to include in her mother's care plan a provision that she should be provided with condoms on request. Ms. Bey was notified of the encounters between Resident 3 and Resident 18 which had taken place on June 27 and 28, 1997. She spoke with staff about the encounters and concluded that there had not been an incident of abuse involving Resident 3 and Resident 18. The term "incident" is defined in the long-term care context as "any unusual happening in a facility that deviates from day-to-day normal activities or anything that results in an injury." Ms. Bey does not believe that sex is an unusual activity, and, in her opinion, Resident 18 was capable of refusing to do anything she did not want to do. Ms. Bey did not conduct an investigation beyond speaking with staff, and she did not notify the facility administrator of the encounters between the two residents. Ms. Bey concluded as a result of her investigation that no abuse had occurred, and, accordingly, no incident and accident report was completed by the facility, nor were the encounters between Resident 3 and Resident 18 reported to Florida's Abuse Registry. The encounters between Resident 3 and Resident 18 were also investigated by the Assistant Director of Nursing, Sherree Montero. Ms. Montero interviewed both staff who had observed Resident 3 and Resident 18 together on June 27 and 28 and staff who had heard about the encounters from other staff. Ms. Montero concluded that there was no evidence that Resident 3 had sexually abused Resident 18. Resident 3 and Resident 18 apparently abandoned their relationship after their first two encounters because there are no further reports of their engaging in sexual conduct, and neither ever requested condoms. On the basis of the information contained in the nursing and social service notes and of the information she obtained through interviews, the Agency surveyor concluded during the survey which was completed on January 28, 1998, that Resident 18 had been the victim of sexual abuse by Resident 3 on June 27 and 28, 1997, and that Edgewater Manor had allowed the abusive situation to occur. In the surveyor's opinion, Resident 18 "lacked the capacity to make that decision [to be sexual] and needed to be protected,"6 even though the surveyor was told by H. F. that Resident 18 could make her own decisions. The surveyor's conclusion that Edgewater Manor's management and the nurses on the Protective Care Unit allowed an abusive situation to exist was also based on her opinion that, even if Resident 18 were able to consent to a sexual relationship, she would need a physical examination and a lubricant before having intercourse. There is no evidentiary basis in the record to support these conclusions of the Agency's surveyor or a finding of fact that Resident 3 sexually abused Resident 18. Rather, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 18 had the capacity to consent to an intimate relationship and that she did so with regard to her two encounters with Resident 3. The evidence is also sufficient to establish that Edgewater Manor's staff responded appropriately to the situation. Resident 19 Resident 19 suffers from Alzheimer's disease and, at the time at issue herein, was alert and oriented towards herself only. She was severely impaired in her ability to make decisions involving activities of daily living. She was incontinent of bowel and bladder and wore a diaper at all times. She was non- verbal except that she would respond to her name being called by uttering noises. She constantly wandered throughout the Protective Care Unit and seldom stayed in one place for any length of time. She often wandered into the rooms of other residents on the unit, and she was sometimes found on the beds in these rooms. When she sat or lay down, she would often lift her legs and wave them in the air. It was reported in the Nursing Care Notes that, on December 30, 1997, Resident 19 was found in Resident 3's room, lying across his bed. In the opinion of the nurse who observed this behavior, Resident 3 was attempting to remove Resident 19's slacks and briefs. Resident 19 was described as disoriented, and she was assisted out of Resident 3's room. When Resident 3 was interrupted, he reportedly stated "It's hard, let me do her - let me do her." The nurse told Resident 3 that his behavior was unacceptable, and he was closely monitored for the rest of the night. On December 31, it was noted that Ms. Streich called Resident 3's brother, who came in and talked to him about his behavior. Resident 3 was reportedly well-behaved until mid- January 1998. Ms. Bey was notified of Resident 3's encounter with Resident 19, and she spoke with staff members about the incident. She was unable to find a staff member who had witnessed Resident 3 pulling Resident 19's slacks down below her waist, although a corner of her brief was sticking above the waistband of the slacks, as though the slacks had not been pulled up completely. The nurse who documented the incident in the Nursing Care Notes would not change her interpretation of what had occurred in Resident 3's room that night; other witnesses interviewed by Ms. Bey stated that Resident 3 sat in his chair until Resident 19 was escorted from his room. As a result of her investigation, Ms. Bey concluded that there had not been an incident of abuse involving Resident 3 and Resident 19. As a result, she did not report the incident to the administrator or prepare an incident and accident report. Ms. Montero also investigated this encounter and interviewed both staff who had observed the incident and staff who had heard about it from others. Based on these interviews and on her own knowledge of Resident 3's physical condition, Ms. Montero concluded that it was not likely that Resident 3 could have successfully pulled Resident 19's slacks down because he often needed assistance dressing himself. The evidence presented by the Agency is sufficient to establish with the requisite degree of certainty that, when he was interrupted by Edgewater Manor's staff, Resident 3 was attempting unsuccessfully to pull Resident 19's pants down as she lay on the bed. The evidence presented by the Agency is not sufficient to establish with the requisite degree of certainty that Resident 3 sexually abused Resident 19: To the contrary, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 3 did not have the mental capacity to formulate the intention to inflict either physical or psychological injury on Resident 19 by his behavior. Moreover, the evidence is uncontroverted that Edgewater Manor's staff intervened promptly to prohibit Resident 3 from completing the act of removing Resident 19's slacks. Resident 20 At the time at issue herein, Resident 20 suffered from Alzheimer's disease and was alert and oriented to herself and others, although she was sometimes confused as to time and place. She had short- and long-term memory problems and was moderately impaired in her ability to make decisions regarding activities of daily life. It was noted on the Multiple Data Set for June 1997 that her cognitive status had deteriorated since the previous quarterly review. She was combative and frequently angry with herself and others, and she sometimes resisted care. She wandered throughout the Protective Care Unit and sometimes exhibited frustration, anxiety, and agitation. Her husband visited her every day, and he attended to her personal needs. Resident 20 was very territorial and would become agitated if another resident came into her room. She did not speak very well, but she would communicate by chattering loudly and waving her arms. As a result, it was always obvious when Resident 20 was agitated or upset. It was reported in the Nursing Care Notes for Resident 3 that, on January 22, 1998, he was found in Rm 123 making sexual advances to both ladies and ejaculation [sic] on the floor after masturbating in front of them. Both ladies were upset. R escorted to own room and then did it on the floor there. R laughed when this nurse told him his actions were not appropriate for public viewing. Room 123 is occupied by Resident 20 and her roommate and is directly across the hall from Resident 3's room. It was reported in the Nursing Care Notes for Resident 20 that, on January 22, 1998, she was very upset because the man from "124-2" had come into her room and made sexual advances to her. She reportedly yelled and pushed away from him. When this encounter was reported to Ms. Bey, she was told that Resident 3 held up his gown with his left arm while he walked, masturbated with his right hand, and ejaculated. Ms. Bey investigated by interviewing staff, and she concluded that the report of the event contained in the Nursing Care Notes was not objective. In Ms. Bey's opinion, Resident 3 was physically incapable of performing these acts simultaneously because of his advanced Parkinson's disease and his history of falling. Ms. Bey spoke with the nurse who had charted the nursing note, but the nurse refused to change the note, stating that the note accurately described the encounter. Ms. Montero also investigated this event and concluded that Resident 3 was not physically capable of simultaneously walking, holding up his gown, and masturbating, much less of ejaculating twice within a thirty-minute period. The evidence presented by the Agency is sufficient to establish that Resident 3 stood in Resident 20's room holding his gown up, masturbating, and ejaculating. The evidence presented by the Agency is not sufficient to establish with the requisite degree of certainty that Resident 3 sexually abused Resident 20. To the contrary, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 3 did not have the mental capacity to formulate the intention to inflict either physical or psychological injury on Resident 20 by his behavior. Moreover, the evidence is uncontroverted that Edgewater Manor's staff intervened promptly to remove Resident 3 from Resident 20's room. Generally In addition to the instances of inappropriate sexual behavior involving Resident 18, Resident 19, and Resident 20, Resident 3 was reported to have behaved inappropriately toward other residents of the Protective Care Unit. The following notation was entered in the Nursing Care Notes for July 9, 1997, at 10:00 p.m.: Resident walks down hallway grabbing [at] other female residents. Attempts to pull a female resident into another room. This nurse found resident pushing shoulders of a female resident down towards bed. Resident starting [sic] kissing another female resident on lips and started leaning over. This nurse caught them. This nurse reminds resident about behavior towards females. Resident continued this behavior for over 2 [hours] this evening. In the Nursing Care Notes for January 24, 1998, it was reported that Resident sexual promiscuity has increased during the last two weeks. Resident calls female staff into room while he is masturbating. He laughs when staff attempts to tell him that his behavior is not appropriate. He was also observed to fondle fellow female residents & was observed undressing them in his room. Fellow residents do not have the mental capacity & are unaware of his sexual advances as it appears. He was again redirected & told that his behavior is unacceptable & . . . the resident just denies he does nothing [sic] wrong & that his behavior is acceptable. As a result of Resident 3's behavior in the weeks preceding January 24, a psychiatric consultation was ordered by Resident 3's physician on January 26, 1998. The report of the consultation was dated February 5, 1998, and the psychiatrist reported that Resident 3's hypersexuality might be controlled by medication. It was also noted in the report that Resident 3 had been referred for a psychiatric consultation in 1995 as a result of sexually inappropriate, aggressive behavior. The Agency's surveyor did not discuss Resident 3's behavior with Ms. Bey or with Mr. Murray, the administrator of Edgewater Manor. Rather, she contacted the Florida Abuse Registry and the Martin County Sheriff's Department and reported her interpretation of Resident 3's behavior based on the information she had gathered from the documentation and her interviews with staff. As a result of suggestions by the Agency's surveyor and the adult protective investigator, Edgewater Manor placed a personal alarm, also known as a tether alarm, on Resident 3. This device would sound an alarm if Resident 3 moved from his chair, so that the staff would know where he was at all times. Although Ms. Bey investigated the reports regarding the sexual behaviors Resident 3 exhibited with Resident 18, Resident 19, and Resident 20, she did not reduce to writing the results of her investigation. No incident and accident reports relating to these events were prepared and no reports were submitted to adult protective services about Resident 3's behavior because Ms. Bey concluded from her investigations that there were no instances of suspected abuse, mistreatment, or neglect involving Resident 3. Had Ms. Bey suspected that abuse had occurred, she would have reported the incidents involving Resident 3 to the Florida Abuse Registry, pursuant to Edgewater Manor's policy of reporting all instances of suspected abuse, mistreatment, or neglect. During the survey, the Agency surveyor was provided with a copy of Edgewater Manor's policy and procedures to prevent abuse, neglect, and mistreatment. Although the policy addressed resident-to-resident abuse and sexual harassment, the survey team concluded that the policy had not been implemented to prevent what the team considered to be the abusive behavior of Resident 3 toward the female residents of the Protective Care Unit. Summary The evidence presented by the Agency is sufficient to establish that Resident 3 had a pattern of engaging in inappropriate sexual behavior directed to both female staff and female residents on the Protective Care Unit. The evidence presented by the Agency is not, however, sufficient to establish with the requisite degree of certainty that Resident 3 could, or did, formulate the intent to inflict physical or psychological injury that would be necessary for his behavior to constitute sexual abuse, as that term is defined in the State Operations Manual. Indeed, the evidence taken as a whole supports a finding that Resident 3 was an elderly man who, as a result of progressive cognitive impairment related to advanced Parkinson's disease, engaged in inappropriate sexual behavior in response to the basic urge for sexual gratification but without any appreciable comprehension of the potential effect of his behavior on others. As derived from the evidence presented herein, the Agency charged that Edgewater Manor failed to prevent, investigate, document, and report Resident 3's sexual abuse of female residents on the Protective Care Unit. Because the Agency has failed to present sufficient evidence to support a finding of fact that Resident 3 committed sexual abuse, Edgewater Manor did not breach its duty to prevent, investigate, document, or report abuse. Moreover, the evidence establishes that Edgewater Manor's staff promptly and appropriately intervened to interrupt Resident 3's inappropriate sexual behavior involving Resident 19 and Resident 20 and to confirm that Resident 3's relationship with Resident 18 was consensual. Additionally, the evidence is uncontroverted that Edgewater Manor had a written policy statement with procedures designed to prevent abuse, neglect, and mistreatment of residents7 and that investigations were done of the encounters between Resident 3 and Resident 18, Resident 19, and Resident 20 by both the Director of Nursing and the Assistant Director of Nursing. Because the investigations lead to the conclusion that sexual abuse had not occurred in any of the three encounters, no written reports were prepared, and the encounters were not reported to the Florida Abuse Registry. The evidence is, therefore, not sufficient to establish that Edgewater Manor violated the requirements that sexual abuse be prevented, investigated, documented, and reported. The evidence presented by the Agency is sufficient to establish with the requisite degree of certainty that Edgewater Manor failed to provide Resident 3 with the medically-related social services necessary for his physical, mental, and psychosocial well-being. Resident 3 was first sent for a psychiatric consultation in 1995 because he had engaged in inappropriate sexual behavior, but, notwithstanding the numerous instances of Resident 3's inappropriate sexual behavior toward staff and other residents from July 1997 through late January 1998, Resident 3 was not referred for another psychiatric consultation until January 26, 1998. The interventions identified in the care plans for Resident 3 were limited to correcting Resident 3 when he engaged in inappropriate sexual behavior, observing and documenting such behavior, and discouraging such behavior toward staff. In addition, the social services director conducted one-on-one "supportive" visits with Resident 3. Edgewater Manor's staff, pursuant to policy, interrupted and redirected Resident 3 when he was observed engaging in inappropriate sexual behavior involving others.8 Resident 3's family members and physician were asked to talk with him after episodes of inappropriate behavior. Because it became obvious that none of these interventions resulted in anything more that a temporary hiatus in his inappropriate sexual behavior, Edgewater Manor should have developed a care plan designed to provide Resident 3 with the services he needed to control his inappropriate sexual behavior both to enhance his own well-being and to protect other residents of the Protective Care Unit. Resident 12 As a result of the January 28, 1998, survey, the Agency cited Edgewater Manor for a Class II deficiency based on a violation of tag F314. The tag F314 violation and Class II deficiency cited by the Agency are associated with the requirement in Title 42, Section 483.25(c), Code of Federal Regulations, that facilities ensure that residents do not develop pressure sores which are not unavoidable and that residents with pressure sores be provided necessary treatment and services. A pressure sore is defined in the State Operations Manual as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear." The seriousness of a pressure sore is described using a "staging system" in which the characteristics of the sore are classified by reference to four stages, two of which are relevant here: A Stage II pressure sore exists when "[a] partial thickness of skin is lost; may present as blistering surrounded by an area of redness and/or induration"; a pressure sore has reached Stage III when "[a] full thickness of skin is lost; exposing the subcutaneous tissue; presents as shallow crater; may be draining."9 Unrelieved, prolonged pressure on areas of dependency such as the heels and the buttocks and coccyx can cause the development of pressure sores, and pressure sores can develop and/or worsen as a result of various clinical conditions. Peripheral vascular disease contributes to the development and impedes the healing of pressure sores because blood vessels are constricted, blood flow is decreased, and skin integrity and healing are compromised because nutrients aren't delivered efficiently to the tissue and because the removal of waste materials is inhibited. Chronic bowel and urinary incontinence compromise skin integrity and contribute to the development of pressure sores, first, because the skin in the area of the buttocks and coccyx is continually being rubbed to clean the resident after each episode of incontinence and, second, because even with regular cleaning and the application of an ointment to provide a moisture barrier it is impossible to keep an incontinent resident's skin from coming into contact with urine and stool. Weight loss affects skin integrity because it is indicative of poor nutrition and hydration, which impede healing. At the time of the January 28, 1998, survey, Resident 12 was a ninety-six-year-old woman who was admitted to Edgewater Manor on October 30, 1990.10 Her diagnoses as of December 1, 1997, and January 1, 1998, included senile dementia, atrial fibrillation, organic brain syndrome, psychotic disorder, cerebral vascular accident, iron deficiency anemia, peripheral vascular disease, stasis ulcer on lower right leg, and impaired skin integrity. As of December 1, 1997, Resident 12 was, and had been for some time, incontinent of bowel and bladder and consistently had loose stool. Since at least August 13, 1997, Resident 12 had been totally dependent on staff for all activities of daily living and was severely impaired in decision- making. Based on Resident 12's diagnoses and her general condition as of December 1, 1997, Resident 12 had several of the primary risk factors for developing pressure sores identified in tag F314: She was immobile and depended on the staff for repositioning; she spent time in a wheelchair with a restraint to keep her properly positioned; and she suffered from peripheral vascular disease, chronic bowel incontinence, and continuous urinary incontinence. Resident 12 was identified by Edgewater Manor as a person at risk of the development of pressure sores, and a care plan dated August 20, 1997, was developed which provided generally for increased protein in her diet and directed that she be given a multivitamin and vitamin C. The care plan reflected that, as of August 20, 1997, Resident 12 had an open area on her right lateral calf,11 and the plan contained specific provisions to deal with the development of pressure sores and with impaired skin integrity. A soft tech mattress, which is like a large feather pillow, was placed on her bed to reduce pressure on the pressure points on her body; she was to be provided with clean dry linens; range of motion manipulation was to be done on her extremities every shift; she was to be turned and repositioned every two hours, her heels were to be off the bed at all times, and pillows were to be placed under her calves; she was to be encouraged to consume all the fluids on her food tray and 80-to- 100 percent of her food; pillows were to be used to keep any bony prominences from direct contact with each other; balmex ointment (bag balm) was to be used on her buttocks after each episode of incontinence; and she was to have a daily skin assessment. Much of the preventive care set out in the August 20 care plan was to be provided by certified nursing assistants. Specifically, because Resident 12 was dependent on staff for almost all activities of daily living, certified nursing assistants were responsible for, among other things, turning and repositioning Resident 12 every two hours, feeding, bathing and grooming, and cleaning her body and her bed after episodes of incontinence. The services provided were recorded daily for each shift on a form entitled "Nurse Assistant Care Records," which was completed and initialed daily by the certified nursing assistant caring for the resident during each shift. The Nurse Assistant Care Records completed for Resident 12 during October, November, and December 1997 establish that, each day, she was fed by the staff and ate her meals in one of Edgewater Manor's dining rooms; that she was repositioned; that she had frequent bouts of bowel and bladder incontinence; that she was cooperative and accepted assistance; that she received passive range of motion movement; and that she spent time sitting in a wheelchair, with restraints. Frequent turning and repositioning is a critical component of care to prevent the development of pressure sores. The Nursing Assistant Care Records for October, November, and December 1997 reflect that Resident 12 was turned and repositioned each shift. The records do not, however, show the frequency of turning and repositioning and variously reflect that Resident 12 turned and repositioned herself independently, that she turned and repositioned herself with assistance, and that she was fully dependent on staff for turning and repositioning. Enid Lue, a certified nursing assistant who provided care to Resident 12 during these three months, testified that she personally turned and repositioned Resident 12 every two hours whenever she cared for her and that she was routinely informed verbally by the certified nursing assistant who cared for Resident 12 during the shift preceding hers that Resident 12 had been turned and repositioned every two hours during that shift. Ms. Lue confirmed that Resident 12 was totally dependent on staff for turning and repositioning and testified that she had incorrectly indicated on the Nursing Assistant Care Records that she had merely assisted Resident 12 to turn and reposition herself. The wound care nurse who provided treatment to Resident 12 for the stasis ulcer on her leg and for the pressure sore which developed on her coccyx testified that whenever he provided treatment to Resident 12 and whenever he passed her room, which was several times each day, he observed that she had been turned and repositioned. Notations are included in the monthly summaries in the Nursing Care Notes for Resident 12 indicating that she was turned and repositioned every two hours in October, November, and December 1997. In addition, the daily Nursing Care Notes maintained for Resident 12 include entries indicating that Resident 12 was turned and repositioned every two hours; the entries in the daily notes appear with greater frequency after December 30, 1997. In September 1997, it was noted in the Dietary Progress Notes maintained by Edgewater Manor's dietitian for Resident 12 that she had problems with skin integrity. The amount of protein in her diet was increased, and it was noted that she received a multi-vitamin and vitamin C, both of which aid in promoting healing. In the quarterly dietary care plan review conducted on November 4, it was noted that Resident 12's weight had remained stable at 117 pounds since January 1997 and that she was on a mechanical soft diet. Resident 12 was to be continued on the current care plan, and staff was directed to encourage fluids. On December 5, the dietitian ordered that protein rich foods be sent on Resident 12's tray. Daily skin assessments for each resident are routine practice at Edgewater Manor, and they are completed by licensed nurses, with a certain number of residents being assessed each shift. Pursuant to a memorandum to all licensed nurses, dated July 8, 1996, the nurses are to note the results of the skin assessment on a Daily Skin Assessment form. The nurses are specifically alerted to watch for redness, tearing, sheet burns, friction, shearing, and pressure areas, among other things. On December 18, 1997, it was noted on the Daily Skin Assessment for Resident 12 that a blister, redness, and/or an open area was observed on her "cheeks." On December 19, Resident 12's physician discontinued the application of bag balm as a moisture barrier on her buttocks and ordered that Desitin ointment be applied instead. The change in the type of ointment to be used on Resident 12's buttocks was made because a reddened area had been detected. The appearance of the reddened area was not, however, charted in the Nursing Care Notes, as required by the Edgewater Manor internal memorandum dated July 8, 1996. On December 24, 1997, it was noted on the Daily Skin Assessment that Resident 12 had an open area on her buttocks. This is reflected in the Nursing Care Notes for December 24, and a new order was given by Resident 12's physician on that date. The new order directed that a hydrocoloid dressing12 was to be applied to the coccyx every three days and that, on the third day, the dressing was to be removed, the area cleaned with a solution of normal saline and dried, and a new dressing applied. The open area was located in a fold of Resident 12's buttock, and two people were required to treat the wound because the buttocks had to be separated to expose it for treatment. On December 29, Resident 12's physician visited her, but he did not issue any new treatment orders except to discontinue the "leg buddy," a type of restraint used to help maintain proper positioning for a person sitting in a wheelchair. The "leg buddy" had been ordered on December 9, 1997, to replace a "lap buddy," another, more restrictive, device used to maintain proper positioning in a wheelchair. The staff noted in the Nursing Care Notes of December 29 that the "leg buddy" had been tried but did not properly position Resident 12 in the wheelchair. It allowed her to slide down in the chair and to rock back and forth. This caused pressure on Resident 12's coccyx and irritated the area. Even so, it was not improper to prescribe use of the leg buddy for Resident 12 because it was important for her to sit up to improve healing, and the leg buddy is the least restrictive restraint for use with a wheelchair. On December 30, Dante Graziani, Edgewater Manor's wound care nurse, visited Resident 12 for the first time to treat both the pressure sore on the coccyx area and the stasis ulcer on the right lower leg.13 Mr. Graziani removed the hydrocoloid dressing which had been placed on the coccyx area pursuant to the treatment prescribed by Resident 12's physician on December 24, and he observed that the wound had worsened since it was first noted on December 24. Mr. Graziani was on vacation from December 24 through December 29 and did not observe the open area on December 24, when treatment began. Nonetheless, he was able to determine that the pressure sore was at Stage II14 on December 24 based on the information provided in the Nursing Care Notes and physician's order. In his experience as a wound care nurse, it is not unusual for pressure sores to worsen during the first days of treatment, and it is standard procedure to allow a week for each new treatment to see if the sore is responding. In Mr. Graziani's opinion, it was unlikely that the sore would have appeared worse when the hydrocoloid dressing was changed on the third day after treatment began and it was not inappropriate for that treatment to have been continued for an additional three days, until December 30. On December 30, Mr. Graziani made the first entry for Resident 12 on the Weekly Pressure Sore Progress Report, which is an internal Edgewater Manor report usually prepared by the wound care nurse. Mr. Graziani determined from his examination that the pressure sore had advanced to Stage III.15 He noted on the report that the open area measured two centimeters wide and three centimeters long, with a depth of two-tenths of a centimeter, about the size of a quarter. Mr. Graziani attributed the worsening of the pressure sore between December 24 and December 30 to Resident 12's continued incontinence, her failure to eat well, her weight loss, her iron deficiency anemia, and her peripheral vascular disease. On the basis of the information provided by Mr. Graziani, Resident 12's physician ordered a change in the treatment of the pressure sore on the coccyx on December 30. Because there was necrotic tissue in the wound, the hydrocoloid dressing was discontinued and a transigel pad was ordered. A transigel pad is a debriding agent and facilitates the removal of necrotic tissue from a wound. Mr. Graziani indicated on the Weekly Pressure Sore Progress Report that December 30 was the first day of treatment with the transigel pad. Also on December 30, Resident 12's physician ordered five days' bed rest and insertion of a Foley catheter until the open area on the coccyx resolved. A care plan for Resident 12 was prepared to address the pressure sore on her coccyx and the statis ulcer on her right leg. The alteration to the integrity of her skin was attributed to her immobility, peripheral vascular disease, and incontinence. The care plan incorporated the physician's orders for use of the transigel pad, insertion of the Foley catheter, and five days' bed rest. It also provided for routine preventive care such as continued use of the soft tech mattress, turning and repositioning every two hours, use of pillows to turn and reposition and to keep pressure off Resident 12's wounds, use of heel protectors, and range of motion to all extremities each shift. The Nursing Care Notes for January 3, 1998, reflect that Resident 12 was not chewing her food and, as a result, was choking. A notation was made that the speech therapist would be notified. In an entry on the Dietary Progress Notes dated January 7, 1998, the dietitian reported that Resident 12's diet had been changed to puree on the recommendation of the speech therapist because Resident 12 had exhibited a problem chewing her food, although the precise date the change was made is not recorded in either the Nursing Care Notes or the Dietary Progress Notes. On January 5, Resident 12's physician ordered a urine culture and sensitivity test because her urine had become dark and cloudy. On the same day, the physician prescribed the antibiotic Cipro for a week and ordered that Resident 12 be encouraged to take fluids. The urinary culture confirmed that Resident 12 had a urinary tract infection. Although fluids were encouraged, Resident 12 generally took them poorly during her illness. The urinary tract infection was resolved on or about January 12, 1998. Also on January 12, 1998, it was noted in the Dietary Progress Notes that Resident 12's weight had dropped to 110.5 pounds, a ten-pound weight loss since December 8, 1997, but still above her ideal body weight of 85-to-105 pounds. The dietitian noted that Resident 12 had been ill with a urinary tract infection but that she had improved and was again eating in the dining room. The dietitian also noted that Resident 12 continued to have skin breakdown and recommended that a protein supplement be prescribed to combat Resident 12's weight loss and to meet her need for increased protein in her diet. The protein supplement was ordered by Resident 12's physician on January 12 and was to be given twice each day. During the time she had the urinary tract infection, Resident 12 continued to receive treatment for the stasis ulcer on her leg and for the pressure sore on her coccyx. On January 8, 1998, the transigel pad was ordered discontinued because the sore on Resident 12's coccyx had been debrided; orders were given by Resident 12's physician that a hydrocoloid dressing was to be placed on the wound on the coccyx. Mr. Graziani noted on the Weekly Pressure Sore Progress Report that, as of January 8, the pressure sore was a Stage II sore. On January 15, Mr. Graziani noted that the pressure sore was improving with the use of the hydrocoloid dressing. However, by January 22, the sore was larger, although still a Stage II sore, and the treatment was changed back to a transigel pad to debride the wound. The record does not reflect the date the pressure sore to the coccyx was resolved, but it was present at the time of the January 30, 1998, survey. The Agency's surveyor based her conclusion that resident 12 developed an avoidable pressure sore while she was a resident of Edgewater Manor on the surveyor's review of documentation provided by Edgewater Manor; on interviews with staff, specifically with Doris Huey, a licensed practical nurse who cared for resident 12; and on an Edgewater Manor internal memorandum to licensed nurses dated July 8, 1996, regarding daily skin assessments. There is no evidence in the record that the Agency's surveyor actually observed resident number 12 during her review of the resident's condition. It is uncontroverted that Resident 12 developed a pressure sore while a resident of Edgewater Manor. The evidence is, however, sufficient to establish with the requisite degree of certainty that Resident 12's clinical condition was such that she was at risk for developing pressure sores and that the care plan for Resident 12 included appropriate routine preventive care measures. In addition, the evidence is sufficient to establish with the requisite degree of certainty that Edgewater Manor's staff provided the prescribed routine preventive and daily care, such as turning and repositioning every two hours; cleaning and drying Resident 12 after episodes of incontinence, including applying ointments to her buttocks which acted as a moisture barrier; using a soft tech mattress to decrease pressure on areas of dependence and bony prominences; and increasing the amounts of protein in Resident 12's diet, changing her food to puree, and encouraging Resident 12 to take fluids. Although weight loss puts a resident at risk of slow healing, nothing in this record associates the development or worsening of Resident 12's pressure sore with her ten-pound weight loss between December 8 and January 8. Finally, the evidence is sufficient to establish with the requisite degree of certainty that Resident 12 received proper treatment to promote healing of the pressure sore, to avoid infection, and to prevent development of new sores. Routine preventive care was continued, and orders were issued for a change from bag balm to Desitin ointment when a reddened area was discovered on Resident 12's coccyx, for use of a hydrocoloid dressing as soon as the sore developed into an open area, and for insertion of a Foley catheter to minimize moisture in the area. In light of all of the evidence of record, the failure of Edgewater Manor's staff to document in the Nursing Care Notes the treatment of the pressure sore from December 24 through December 29 cannot support the inference that such treatment was not given. DOAH Case No. 98-2553: March 30, 1998, survey When the Agency's survey team conducted the March 30, 1998, follow-up survey, Edgewater Manor was found to have corrected the two Class II deficiencies identified in the January 28 survey involving Resident 3 and Resident 12. However, as a result of the March 30 follow-up survey, the Agency cited Edgewater Manor for a Class II deficiency based on a violation of tag F224. The tag F224 violation and Class II deficiency cited by the Agency are associated with the requirements in Title 42, Section 483.13(c), Code of Federal Regulations, that facilities develop and implement written policies prohibiting the mistreatment, neglect, and abuse of residents. Resident 8, who was born on October 7, 1914, was admitted to Edgewater Manor on February 22, 1996, with a primary diagnosis of a fracture of the femur intertrochanteric, that is, a fractured hip. In a Minimum Data Set completed January 12, 1998, Resident 8's diagnoses were listed as hypertension, peripheral vascular disease, non-Alzheimer's dementia, transient ischemic attack, and hemiplegia/hemiparesis. She had both short- and long-term memory problems and was severely impaired in her decision-making ability, with a deterioration of her cognitive status having occurred since the previous assessment. She was totally dependent on staff for personal hygiene, locomotion in a wheelchair both on and off her unit, dressing, eating, and toilet use. She was frequently incontinent of bowel and always incontinent of bladder. She had two areas on her skin which exhibited redness which did not disappear when pressure was relieved, and she had a pressure ulcer in which a partial thickness of skin was lost, presenting as either an abrasion, blister, or shallow crater. She also had skin tears or cuts and was receiving protective and/or preventative skin care. She could reposition herself in her bed with limited assistance from one staff member.16 On the other hand, Resident 8 needed extensive assistance to transfer from her bed to a chair or wheelchair, with two staff members required to assist her by providing weight-bearing support or, at times, full support. Her ability to perform activities of daily living had deteriorated since the previous assessment, and Edgewater Manor staff's predicted that Resident 8's condition would continue to decline. A care plan was developed January 18, 1998, in which the care to be given to Resident 8 in light of the January 12 assessment was specified.17 On February 25, 1998, at approximately 10:00 a.m., a hematoma (bruise) of moderate size was found on Resident 8's left upper arm. Edgewater Manor's Director of Nursing, Janice Bey, was notified of the hematoma through an incident report, conducted an investigation to determine the cause of the injury, and concluded that the hematoma resulted from a blood-draw done on February 23 and not from abuse, neglect or mistreatment. Ms. Bey did not reduce to writing the results of her investigation into the cause of the hematoma on Resident 8's arm. Also on February 25, 1998, at approximately 3:30 p.m., the registered nurse on duty was called to Resident 8's room by a certified nursing assistant to observe that Resident 8's left great toe was swollen and looked inflamed. The wound care nurse and a podiatrist were called to evaluate the wound. On February 27, at approximately 4:00 p.m., a certified nursing assistant reported that there was some bleeding on Resident 8's left great toe and that the toenail had come off. The toe was rinsed with normal saline solution and loosely wrapped with gauze; there was no indication that the toe had received any previous treatment. Ms. Bey was notified of the bleeding toe and of the missing nail through an incident report. She was already aware that the toe was swollen and inflamed. Ms. Bey investigated the cause of the injury by interviewing the staff members who cared for Resident 8, and she personally examined Resident 8's toe. She concluded that the swelling and inflammation of the toe, with the subsequent loss of the toenail, was the result of Resident 8's peripheral vascular disease, exacerbated by the fact that she was not ambulatory. Ms. Bey found no bruising or skin tears around the toe and, therefore, determined that no abuse, neglect, or mistreatment had occurred. Ms. Bey did not reduce to writing the results of her investigation. At approximately 3:00 p.m. on March 4, 1998, an aide reported that Resident 8 had an "ecchymotic" area (bruise) above her right eye. The licensed practical nurse on duty at the time completed an incident report and noted that the cause of the bruise and the place and time it occurred was unknown. On March 17, 1998, Resident 8 received two skin tears as she was being transferred from her bed to a wheelchair. The tears were on the right shin area, at right angles to one another, and were approximately one centimeter long by one centimeter wide. A small amount of redness was noted. The skin tears were cleansed and wrapped. Resident 8's son was notified of the skin tears, and an incident report and treatment request were sent via facsimile to Resident 8's physician. Ms. Bey was notified of the skin tears, and she investigated the cause of the injury. Ms. Bey found no evidence that the skin tears were caused by neglect or mistreatment, especially since Resident 8's skin was extremely fragile and paper-thin. Ms. Bey did not reduce to writing the results of her investigation. On March 21, 1998, at approximately 7:45 p.m., the nurse on duty was called to Resident 8's room to examine her left lower leg, which had a bruised area and was hot to the touch. An incident report was prepared, and Ms. Bey was contacted at her home. She directed the nurse to contact Resident 8's physician. The physician was notified of the condition of the leg at approximately 9:30 p.m. He initially diagnosed Resident 8's condition as cellulitis and issued new orders for treatment of this condition. By 6:00 a.m. on March 22, antibiotics were being administered, and shortly thereafter, Resident 8's temperature was recorded at 100.4 degrees. By 2:30 p.m. on March 22, the left lower leg was not quite as swollen but was still hot to the touch. Ms. Bey visited Resident 8 when she returned to work on Monday, March 23. She observed that the leg had edema and that it was no longer red but was dark bluish in color. Based on her observation, Ms. Bey doubted that the diagnosis of cellulitis was accurate. Ms. Bey directed that Resident 8's physician be called, and she recommended that an x-ray be taken of the leg. On March 23, Resident 8's physician visited her and ordered an x-ray of the left lower leg and ankle. The x-ray of the left ankle, which was read by a radiologist at the Martin Memorial Diagnostic Center on March 23, 1998, showed that Resident 8 had a "trimalleolar fracture with significant displacement and disruption of the mortise," with "generalized soft tissue swelling" noted. An x-ray of the tibia and fibula taken at the same time revealed evidence of "the distal fracture" but no others, and the report contained the observation that Resident 8's bones were demineralized and vascular calcifications were noted. On March 25, Resident 8 was transported to the office of a Dr. Fraraccio for examination and treatment. He concurred that Resident 8 had an old "fracture of the left distal femur" and that she also had "a fresh fracture of the left ankle." He put a short cast on the leg, and she was returned to Edgewater Manor. Resident 8's left lower leg was still in the cast when the March 30, 1998, survey was conducted. When Edgewater Manor received the reports which indicated that Resident 8's ankle was fractured and displaced, Ms. Bey spoke with the staff to determine the cause of the injury. As a result of this investigation, Ms. Bey concluded that Resident 8 had not been dropped when being transferred and that the fracture could not be associated with any particular event. Ms. Bey's clinical impression was that Resident 8 had very fragile bones and a history of fractures, as set out in reports of x-rays taken in May 1997, which were maintained as part of Resident 8's chart. In her opinion, Resident 8's ankle could have been fractured when she was transferred from the bed to a chair or turned and repositioned in the bed or by the pressure of a wash cloth when she was bathed. Ms. Bey relied during her investigation on the opinion of Dr. Fraraccio, which she solicited, that he believed the fracture was unavoidable and that it "could have occurred during normal transfer or by any other maneuver, such as turning the patient in bed." Ms. Bey ultimately concluded that the fracture was not caused by abuse, neglect, or exploitation, but she did not reduce to writing the results of her investigation. The Agency's surveyor determined that each of Resident 8's bruises, the inflamed toe, and the ankle fracture were caused by mistreatment or neglect by the staff. This determination was not based on any independent investigation by the surveyor but solely on her conclusion that Resident 8 could not have injured herself because she was cognitively impaired, was totally dependent on staff for activities of daily living, and required the assistance of two people for transfers from her bed to a chair or wheelchair. Even if it such a determination were relevant to the violation alleged, the Agency presented no evidence from which it could be found, with any degree of confidence, that Resident 8 was the victim of abuse, mistreatment, or neglect. The Agency did not, however, cite Edgewater Manor with a tag F224 violation for having abused, mistreated, or neglected Resident 8 or with a tag F225 violation for having failed to investigate incidents involving abuse, neglect, or mistreatment.18 Rather, the Agency cited Edgewater Manor with a tag F224 violation for failing to develop and implement written policies and procedures to prohibit mistreatment, neglect, and abuse of residents.19 The evidence conclusively establishes that Edgewater Manor had indeed developed such written policies and procedures for the protection of all of its residents from abuse, mistreatment, or neglect and provided a copy to the Agency surveyor. Furthermore, the Agency presented no evidence to establish that these policies were not implemented with regard to Resident 8. The survey team apparently based its decision to cite Edgewater Manor for a tag F224 violation and Class II deficiency related to Resident 8 on the lack of documentation of Ms. Bey's investigations into the causes of Resident 8's bruises, inflamed toe, and fractured ankle. 20 The team apparently applied the following reasoning: Because there were no written reports of Ms. Bey's investigations, no investigations had been conducted; because no investigations were conducted, it was not possible for Edgewater Manor to develop written policies and procedures to prohibit abuse, neglect, or mistreatment or to develop a care plan for Resident 8 to avoid future injuries.21 These inferences lack any foundation in logic and, as noted above, are not supported by the evidence presented in this case. Finally, the evidence is not sufficient to establish with the requisite degree of certainty that the care plan developed for Resident 8 failed to specify the means by which she was to be transferred from her bed to a chair or wheelchair,22 even assuming that the inclusion of such instructions would be necessary to protect her from abuse, mistreatment, or neglect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order in DOAH Case No. 98-1270 Finding that Hobe Sound Geriatric Vill., d/b/a Edgewater Manor, violated the requirements of Title 42, Section 483.15(g), Code of Federal Regulations; Citing Edgewater Manor with a Class II deficiency at the time of the January 1998 survey based on a violation of tag F250; and, Denying Edgewater Manor's request to change its conditional rating for the period from January 28, 1998 through March 30, 1998. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order in DOAH Case No. 98-2553 Rescinding the conditional rating for the period from March 31, 1998, through February 28, 1999; and Issuing the appropriate rating to Edgewater Manor effective March 31, 1998. DONE AND ENTERED this 10th day of May, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1999.
The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Edward G. LeGer, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 9, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The hearing was conducted on December 16, 1981. In the course of the final hearing the Petitioner testified and offered as witnesses, Larry Carroll and James Thaddeus Rogers, participants in the sex offender program at Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted two exhibits, composite in nature, which were admitted. Respondent called as witnesses, Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital; Michael Pomeroy, Clinical Psychologist at Florida State Hospital and Connie Smith, Clinical Social Worker at Florida State Hospital. Respondent presented no exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent, in keeping with the orders of Court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying conditions which caused him to be placed in this program have reached their zenith. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. LeGer was committed to the custody of the Respondent on February 27, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on April 23, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with LeGer's long standing sexual deviation, which specific condition is pedophilia and his associated difficulty with chronic alcoholism, until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated for these difficulties. (The patient also had undergone treatment as a sex offender in the 1960's.) The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. Petitioner's Composite Exhibit No. 1 is constituted of a series of progress reports or clinical summaries of Petitioner's condition during the course of his treatment. As can be seen, the patient has made significant progress in dealing with his condition of alcoholism and his general conduct and demeanor has been exemplary; however, he has gained little insight into his sexual condition of pedophilia. This is borne out by the patient's beliefs that the staff session of September 16, 1981, in which he expressed his firm belief that he had reached maximum benefits from the treatment program and felt that he was no longer a risk to commit the sexual offenses, in that he was aware of the consequences of his deviant behavior for himself and others. This belief is erroneous, in that the staff report and the testimony given by staff members in the course of the hearing lead to the conclusion that the patient has not gained sufficient insight and understanding as to his deviant sexual behavior, sufficient to deter him from committing future sexual offenses. Michael Pomeroy, the patient's primary therapist from May, 1980, through mid-January, 1981, by his testimony, established the fact that the Petitioner had never been open enough with Pomeroy for Pomeroy to gain an understanding about what the patient's underlying problems were. It was through the witness Pomeroy's review of the history of the case that Pomeroy learned of the patient's problems with alcoholism and pedophilia related to young females. Pomeroy correctly describes the patient's participation in the program to be superficial, with the exception of the alcoholic rehabilitation aspects of the treatment and care. In dealing with Pomeroy, the patient was evasive and his behavior evidenced a manipulative demeanor (con or criminal attitude). In dealing with the question of his sexual problem, the patient simply would tell Pomeroy that he, the patient, wanted treatment. Pomeroy found the patient to be of the persuasion that the patient did not feel that he had a problem other than alcoholism, which had been overcome, and having overcome the alcoholism, all other problems were taken care of. Pomeroy found LeGer to have no understanding of what caused him to do his sexual acting out or what to do about that acting out in the future. These attitudes by the patient continued through the time of the final hearing, according to Pomeroy. In view of the lack of insight and no clear changes in attitude during the course of treatment and the resulting belief by the Petitioner that he does not have a problem of sexual deviance, Pomeroy's testimony establishes the fact that the Respondent is unable to treat the patient's pedophilia and the fact that his condition of pedophilia still presents a danger to society. Connie Smith, the patient's therapist from January, 1981, to the present, identified the most recent analysis by the staff of the problems presented by the patient's clinical profile. Those problems are: (1) gaining insight and understanding into deviant sexual behavior; (2) defensiveness and evasiveness with regard to relating feedback about himself and events directly related to his sexual problems; (3) exploring his needs to be over attentive to the needs and problems of others; and (4) exploring his dependence on alcohol. In these areas, Smith has found that the patient has not progressed in dealing with his sexual deviation and tends to over exaggerate his progress in that area. LeGer tells the therapist that he will do what she wishes him to do to participate in the program; however, he does not believe that he needs the therapy. (This comports with the testimony which LeGer gave in the course of the hearing. Notwithstanding this belief, he stated that he wanted to stay six months more in the program and that he would have done better had the therapy been more intense. The witnesses Carroll and Rogers agreed with this latter remark by the Petitioner and also expressed a belief that the patient had successfully completed the program, opinions not supported by the other evidence and not accepted by this Hearing Officer.) According to Smith, when LeGer has occasionally discussed the event which placed him in the program on this occasion, i.e., sexual battery on a minor female, he has discussed it in a superficial way and tended to place some blame on the victim. Finally, Smith agrees with Pomeroy's perception that the patient does not have sufficient insight into his problem and continues to meet the definition of a sex offender within the meaning of Chapter 917, Florida Statutes, and will not make progress by additional stay in the program. These perceptions are well founded. The Clinical Director of the Florida State Hospital Sex Offender Program, Robert H. Alcorn, presented the Petitioner's situation through a staffing conference of program officials in the other sex offender programs offered by the Respondent. This occurred on November 2, 1981, and it was the feeling of the other program officials that they would not be able to assist the Petitioner further, and in that sense, as in the situation at Florida State Hospital, had exhausted treatment for the Petitioner's underlying sexual deviance. The Respondent has exhausted all appropriate treatment for the patient's sexual problem, but that treatment has not been totally successful and the patient continues to be a sexual menace and there is a likelihood that the patient would commit other sexual crimes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Edward G. LeGer in its sex offender programs and that said Edward G. LeGer be returned to the committing court for further disposition. DONE and ENTERED this 13th day of January, 1982, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1982. COPIES FURNISHED: Edward G. LeGer Florida State Hospital Chattahoochee, Florida 32324 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue Whether Respondents committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Agency adopts the findings of fact set forth in the Recommended Order. CLUSIONS OF LAW The Agency adopts the conclusions of law set forth in the Recommended Order. RDER 1. The Agency’s Amended Administrative Complaint is UPHELD and the above- named Respondent’s license is REVOKED. , 2. Additionally, a $20,000 fine and $1,000 survey fee are hereby imposed. Unless payment has already been made, payment in the amount of $21,000 is now due from the Respondent as a result of the agency action. Such payment shall be made in full within 30 days of the filing of this Final Order. The payment shall be made by check payable to Agency for Health Care Administration, and shall be mailed to the Agency for Health Care Administration, Attn. Revenue Management Unit, Office of Finance and Accounting, 2727 Mahan Drive, Mail Stop #14, Tallahassee, FL 32308. 3. In order to ensure the health, safety, and welfare of the Respondent’s clients, the revocation of the Respondent’s license is stayed for 30 days from the filing date of this Final Order for the sole purpose of allowing the safe and orderly discharge of clients. § 408.815(6), Fla. Stat. The Respondent is prohibited from accepting any new admissions during this period and must immediately notify the clients that they will soon be discharged. The Respondent must comply with all other applicable federal and state laws. At the conclusion of the stay, or upon the discontinuance of operations, whichever is first, the Respondent shall promptly return the license certificate which is the subject of this agency action to the appropriate licensure unit in Tallahassee, Florida. Fla. Admin. Code R. 59A- 35.040(5). 4. In accordance with Florida law, the Respondent is responsible for retaining and i appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. : 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. | ORDERED in Tallahassee, Florida, on this _/” day of put. = 2013, r ELIZABETH DUNEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
Conclusions This cause was referred to the Division of Administrative Hearings where the assigned Administrative Law Judge (ALJ), Lynne A. Quimby-Pennock, conducted a formal administrative hearing. At issue in this case is whether Respondent committed the violations alleged in the Amended Administrative Complaint; and, if so,-what penalty should be imposed. The Recommended Order dated January 17, 2013, is attached to this Final Order and incorporated herein by reference, except where noted infra.
Recommendation f Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Gene Cowles and Amelia Cowles, d/b/a Hillandale Assisted Living, violated sections 429.28 (1) {a} and (b) and 408.815(1) (e), imposing’ an administrative fine of $20,000.00, and assessing a survey fee of $1,000.00 ($500.00 for each investigation) associated with this case. 32 DONE AND ENTERED this 17th day of January, 2013, in Tallahassee, Leon County, Florida. Sn Meeffink YNNE A. QUIMBY-PENNOCK : Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2013.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and comect gepy of this Final Order was served on the below-named persons by the method designated on this {30-day of Fora , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia R. Caufman, Field Office Manager Revenue Management Unit Areas 5 and 6 (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Tracy George, Chief Appellate Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Christina Mesa, Esquire MESA Law, P.A. P.O. Box 10207 Tampa, Florida 33679-0207 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. STATE OF FLORIDA FILED AGENCY FOR HEALTH CARE ADMINISTRATION ~ AHCA AGENCY CLERK STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, . MAPA Ib A yy: Petitioner, DOAH CASE NO. 11-3721 AHCA NOS, 2011006466 v. ‘ : ~ 2011006798 LICENSE NO. 10549 GENE COWLES AND AMELIA COWLES FILE NO. 11966321 d/b/a HILLANDALE ASSISTED LIVING, FACILITY TYPE: ASSISTED LIVING FACILITY Respondent. RENDITION NO.: AHCA-24- 0,3 5°7-FOF-OLC / .
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
Findings Of Fact On November 17, 1987, Petitioner was awarded CON 3746 to construct a 60-bed addition to its existing facility, Suwannee Health Care Center, in Live Oak, Florida. On July 14, 1988, Petitioner filed the application in the instant case. Petitioner proposes to transfer the 60 beds authorized by CON 3746 to Florida Land Trust Number Seven (the Land Trust). The Land Trust is the owner of a 60-bed nursing home in Live Oak, Florida, called Surrey Place Nursing Center of Live Oak (Surrey Place). Surrey Place is operated by Health Care Associates (HCA), which is owned by the beneficiaries of the Land Trust. The construction of Surrey Place was authorized by CON 3395 and Surrey Place opened in January, 1988. The application for CON 3395 was filed on July 16, 1984. Petitioner's proposal is for the 60 beds to be constructed as a 60-bed addition to Surrey Place. By letter dated August 11, 1988, HRS returned the application for expedited review of the transfer to Petitioner. The letter states that the proposal by Petitioner "is not merely a transfer of a CON, but rather an addition of beds to an existing facility which would change the scope and operation of the existing nursing home. Therefore, the addition of beds requires a full batched review." Petitioner's Exhibit 3. HRS did not review the application on its merits prior to issuing the August 11, 1988 letter. Suwannee Health Care Center and Surrey Place are both located in the same planning subdistrict and are located within one-half mile of each other. Transfer It is HRS's policy that a "transfer" occurs only when a new owner agrees to take over a project and implement it exactly as originally approved. Also, it is HRS's policy that the transferee should be the applicant for a transfer. In the past, however, HRS has accepted for review and approved transfers where the application was filed by the transferrer. Also, HRS in the past has approved transfers which involved more than just a mere change of ownership. These transfers resulted in the combination of the beds approved by the CON to be transferred with the beds approved by other CONs with the end result being the construction of a larger nursing home facility than was contemplated under either CON. Combination During the 1988 Session of the Florida Legislature, Health Quest Corporation (Health Quest) advocated to the Legislature that certain legislation amending Chapter 381, Florida Statutes, be enacted. Health Quest drafted the proposed legislation and lobbied for its enactment. Health Quest wanted the amendment because it had a CON for a 180-bed nursing home to be built in Sarasota County which it wanted to divide into a 120-bed freestanding facility and a 60-bed addition to an existing facility in Sarasota County. During the 1988 Legislative Session, HRS and Health Quest entered into an Agreement. The entire Agreement provides that: AGREEMENT This Agreement is made between Health Quest Corporation ("Health Quest") and the Department of Health and Rehabilitative Services ("HRS") this 31st day of May, 1988. RECITALS Health Quest holds CON No. 3278 ("the CON") authorizing a 180-bed nursing home in Sarasota County. Health Quest operates a 53-bed nursing home ("the Facility") adjacent to the Lake Pointe Woods retirement complex in Sarasota. On September 29, 1987, Health Quest filed with HRS an application seeking expedited review for its proposal to divide the CON into a 60-bed component and a 120-bed component. As set forth in the application, the 60-bed component is for an addition to the Facility and the 120-bed component is for a freestanding facility. Since on or before September 4, 1987, it has been the Department's position that such division or consolidation could be accomplished only through batched comparative review. Currently pending before the Division of Administrative Hearings ("DOAH") is a Section 120.57(1) petition filed by Health Quest contesting the refusal of HRS to review Health Quest's September 29, 1987 application as a project subject to expedited review. The Florida Legislature is considering the enactment of the Affordable Health Care Assurance Act of 1988 ("the Act"). The Act would amend Section 381.706(2), Florida Statutes, to add subsections (j) and (k), providing for expedited review of applications to divide a single approved facility or to consolidate two or more approved certificates of need into a single facility. The Act would also add Section 381.705(3) to limit the criteria for review of certain applications filed under Section 381.706(2)(j) or 381.706(2)(k) and would add Section 381.710(2)(d) providing for extension of the validity period of CONs for which applications under Section 381.706(2)(j) or 381.706(2)(k) are filed. Contingent upon passage of the Act, HRS and Health Quest wish to settle the DOAH proceeding and other litigation involving the September 29, 1987 application to divide CON 3278. TERMS HRS acknowledges that an applicant would be entitled, under the Act, to expedited review of applications not only to divide or consolidate CONs but to do both at the same time, e.g., divide 60 beds from CON 3278 and consolidate these beds into the existing beds at the Facility now operated by Health Quest. At such time as the Act becomes law and Health Quest files an application substantially similar to its September 29, 1987 application, HRS agrees that the validity period of CON 3278 shall, due to litigation involving the division and consolidation of CON 3278 commenced on February 17, 1988, be extended 168 days to January 17, 1989. This Agreement does not constitute a waiver on the part of Health Quest of any right to additional extension of the validity period after August 2, 1988 if the Department fails to approve the application on or before said date. Upon approval of the application, Health Quest shall dismiss the DOAH proceeding and the District Court of Appeals proceeding involving the division of CON 3278. The Agreement was signed by J. Robert Griffin, M.A., J.D., HRS's Deputy Assistant Secretary for Regulation and Health Facilities, and Charles M. Loeser, Health Quest's Vice President and General Counsel. The amendments referred to in the Agreement were enacted by the Legislature and are now codified in Sections 381.706(2)(j) and (k), 381.705(3) and 381.710(2)(d), Florida Statutes (1988 Supp.). On July 1, 1988, Health Quest submitted to HRS a second application for expedited review of its proposal to divide 60 beds from a 180-bed CON and add the 60 beds to an existing 53-bed facility which it owned. HRS reviewed the application using the review criteria set forth in Section 381.705(3), Florida Statutes (1988 Supp.), approved it, and issued CON 5655 on August 5, 1988. Notwithstanding the passage of the 1988 Amendments, the Agreement, and the issuance of CON 5655, HRS's interpretation of Section 381.706, Florida Statutes (1988 Supp.), is that the addition of beds to an existing facility requires full comparative batched review and, therefore, cannot be approved by expedited review. HRS interprets the provisions of Section 381.706(2)(j) as requiring that at least two CONs be in existence at the time of the proposed combination. In HRS's view two CONs can only exist if the two facilities approved by the CONs have not been built, since it is HRS's policy that a CON ceases to exist when a license is issued for the facility to begin operation. Review Criteria The proposed addition of 60 beds to Surrey Place is financially feasible. The Land Trust and its principals have the financial resources to complete the project and are capable of developing and managing the project. The Land Trust and its principals have previous experience successfully operating nursing homes in Florida and have a history of providing quality care. Surrey Place was built with the expectation that it would eventually consist of 120 beds. Except for the addition of the 60 beds, the scope and operation of Surrey Place will not change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order approving Petitioner's application. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. JOSE DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. APPENDIX Rulings on Petitioner's Proposed Findings of Fact 1.-10. Accepted. Some of these proposed findings of fact are subordinate to facts found. 11. Irrelevant. 12.-27. Accepted. Some of the proposed findings of fact are subordinate to facts found. 28.-30. Accepted, except to the extent they imply that the approval was for the addition of beds to an existing facility. 31-34. Rejected as irrelevant; what final action HRS would have taken is unknown. Irrelevant. True but irrelevant; HRS is free to change its policy if it can explicate it at hearing. 37.-39. Accepted. 40.-42. Accepted, except last sentence of 42 which is rejected. The Careage transfer was for an addition of beds to a facility not yet built. 43.-47. Rejected as irrelevant. 48-54. Accepted. 55.-59. Accepted. 60.-61. Accepted, but the policy manual describes HRS's past unwritten policy. 62. Rejected as argument. Rulings on HRS'S Proposed Findings of Fact Accepted. Accepted, but subordinate to facts found. Accepted. However, there is sufficient evidence to conclude that the Land Trust through its trustee and beneficiaries will be able to fund the project. Accepted. 5.-6. Accepted that this is HRS's policy and interpretation of the statutes. However, see Conclusions of Law. Accepted. Accepted that this is HRS's basis for its interpretation. However, in this case, the competitive environment is not changed. Rejected. The Department was directed to issue the CON because there was need in the area and not because of the uniqueness of the facility. First sentence accepted to the extent that Petitioner did not specifically mention Section 351.706 in its application. However, by the time of hearing the applicability of the statute was not in question and an issue in the case was whether the proposal met the language of the statute. Rest of paragraph accepted as HRS's policy. 11.-14. Accepted as HRS's policy. True, but irrelevant. Rejected as argument. Irrelevant, since no final action on the merits was taken. Accepted that this is HRS's policy, but see Conclusions of Law. Accepted that this is HRS's current policy. However, HRS has in the recent past accepted and approved transfer applications filed by the transferee. First two sentences accepted. Last sentence rejected; HRS knew enough to enter into the agreement and failed to present any evidence that what it knew then somehow changed. Accepted. Rejected as irrelevant and argument. Rejected as argument. COPIES FURNISHED: Boone, Boone, Klingbeil and Boone, P.A. Stephen K. Boone, Esquire 1001 Avenida del Circle Venice, Florida 34284 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact At all times pertinent to the issues heard at this hearing, Respondent was licensed to practice medicine in the State of Florida under License No. ME- 0022000 and was in practice in Orlando. Respondent is Dr. Mario Vega. Dr. James J. Schoeck, a physician practicing in Orlando, was, during 1980, Chairman of the Board of Censors of the Orange County Medical Society (OCMS). In that capacity, he had occasion to contact Respondent based on a letter from Dr. Alberto Herran, Chairman of the Patient Review Committee, founded on a grievance letter from a former patient of Respondent, Debra Mitchell. Ms. Mitchell had complained that she had gone to see Respondent on a medical matter and he had given her a 20-minute pelvic examination without wearing a surgical glove and without a nurse present. Since this was the Respondent's first reported offense allegation, Dr. Schoeck merely discussed the situation with him and got his side of the story, to the effect that a female employee was just down the hall during the examination and nothing out of the ordinary was done. No further action was taken by the OCMS as a result of this. It is not a unique type of complaint for the OCMS which, upon investigation, finds most to be unfounded. Debra Hall Mitchell saw Respondent in his office on September 19, 1980, because she was having a pain in her lower abdominal area, thought she might have an infection of some kind, and wanted it checked. When she got to the office, the only people there were Respondent and his wife, who after weighing her and doing the preliminary activities, took her into an examining room and asked her to disrobe and don a paper examining gown. When Respondent came in, he asked her to lie down on the examining table and asked what her problem was. Ms. Mitchell told him about the pain she was having. At that point, she thought it odd that there was no nurse present in the room with them, but because she had a strong trust in doctors, she did not worry about it. The pelvic examination took approximately 20 minutes with Respondent having the fingers on one hand in her vagina while he pushed on her abdomen with the other hand. When he was finished, he had her stand in front of him with her back to him and examined her vagina with her standing up, again using his other hand to push on her stomach, from time to time asking her if what he was doing hurt her. During the course of the examination, because it took as long as it did, Ms. Mitchell became alarmed and asked Respondent if anything was wrong. He replied that one of her ovaries was enlarged, but not to worry about it. When she got off the table, it was then she noticed that Respondent was not wearing any surgical gloves. She is not sure if he began the pelvic examination by using any type of instrument. After completing the examination, Respondent told Ms. Mitchell to get dressed and left the room. After she was dressed, he came back in, told her he did not find anything except for a slightly enlarged ovary, gave her a prescription for an antibiotic, and requested she come back in a week. When she stopped at the front desk, she did not say anything to the lady there, the Respondent's wife, because she was embarrassed. She merely did the necessary administrative things, including making another appointment and arranging for payment by Medicaid and left. However, as she began telling her friend about what happened on the way home, she got more and more upset; and when she arrived home, she called a female doctor friend of hers who advised her to write to the Medical Society, which she did, but not until two months later. Also, she discussed the situation with a couple of her very closest friends during this period to get advice on what to do about this situation. She neither had the prescription given her by Respondent filled, nor went back to see him again. Several weeks later, when her condition had worsened, she went to see another physician. On April 16, 1982, Georgia S. Fields, 17, went to the Respondent's office to get her birth control pills. She had been to see him four or five times previously, having been taken there initially by her mother, who was also Respondent's patient. When she entered his examining room, Respondent asked her to sit down and asked how her mother was. Then, according to the witness, he had her stand up, and, sitting to the side of her, unzipped her dress and checked her breasts. He then ostensibly pulled her underpants down below her knees and massaged her clitoris for about 10 minutes, during which time he said nothing to her. He then reportedly examined her vagina and told her she was dry. After these activities went on for a while, according to the witness, he then moved her chair behind her and brushed his lips, like a light kiss, across her shoulder. With that, the witness called an immediate halt, at which point the Respondent pulled her panties back up, wrote out her prescription and returned to his office while she went up to the desk. According to the witness, this was unusual, as he usually would accompany her to the desk. Ms. Fields, feeling quite upset about this situation, told the lady at the desk what had happened and refused to pay the bill. When she got home that day, Ms. Fields told her mother what ostensibly had happened and, on the next morning, reported it at the police department. Ms. Fields, as was stated above, has seen Respondent on several different occasions going back to early 1981. Though she denies having had any type of vaginal discharge, she admits to several infections, and her medical records indicate she was treated on various occasions for vaginal discharge. Ms. Fields also states she came in on the day in question only to get a refill on her birth control pills, yet both Respondent's testimony and his patient notes clearly reflect that she complained about low back pain resulting from an injury at work and requested information about a possible disability. Catherine Lynn Griffin, Ms. Fields' cousin, recalled a conversation she had with her shortly after Ms. Fields' last visit to Respondent. At that time, Ms. Fields stated she was angry with Dr. Vega because he would not give her a statement regarding her work. Ms. Fields indicated at the time that she had filed a complaint against the doctor, although she would not say why. She was heard to state at that time words to the effect that "I'll either get some money from him, or he'll lose his license." Coincidentally, Ms. Fields' medical records on file at her work place, Disneyworld, reflect that on June 1, 1982, somewhat over a month after her last visit to Dr. Vega's office, she was seen in the Disney doctor's office complaining of pain in the low back area resulting from pushing a wheelbarrow up a hill while at work in the landscaping department on May 28, 1982. At that time, the doctor put her on light duty for one week. She was seen again in follow up on June 8 and June 22. There is no evidence of any permanent injury. About three weeks after the alleged incident, on April 16, 1982, Ms. Fields' mother came into Respondent's office and apologized to Mrs. Vega, who was working there at the time, saying that she knew her daughter's allegations were not true. Mrs. Fields is still currently a patient of Respondent. Respondent denies any impropriety with Ms. Fields on this or any other occasion. While admitting he did not have a witness in the room while examining Ms. Fields, he states there was no need to do so because there was no pelvic examination conducted. He contends that the visit concerned itself with the birth control pills he prescribed, discussion of resolved prior vaginal discharge problems and continuation of discussion regarding a certification of Ms. Fields' mother as an alcoholic, which he refused to do. The main purpose of the visit related to an examination of her back concerning her request for a disability certificate for work. He also refused to give her the certificate. Dr. Vega also referred to his admitted failure to use gloves, which other evidence showed is sometimes the case with other doctors as well. Both the presence of a witness and the use of gloves are protection for the physician, not the patient. The first protects against unwarranted allegations of improper conduct, and the second, while admittedly protecting the patient from possible infection by the hands of the doctor, equally as important and more likely, protects the doctor from contamination by his patient. Ms. Fields was, at the time of the alleged incident, under 18 years old. She dropped out of school in the ninth grade. She has been described in her medical records as having acne, unpleasant odors from the vaginal area, cervical and vaginal discharges secondary to poor hygiene habits, oily seborrhea and halitosis. Considering the inherent probabilities and improbabilities of the evidence presented, and the permissible influences to be drawn therefrom, the evidence fails to establish sufficiently that this Respondent conducted a vaginal examination on this occasion or made any sexual advances toward Ms. Field by kissing her shoulders.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner dismiss the Administrative Complaint herein. RECOMMENDED this 17th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Ms. Dorothy Faircloth Department of Professional Executive Director Regulation Board of Medical Examiners 130 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation 130 North Monroe Street Michael Sigman, Esquire Tallahassee, Florida 32301 Post Office Box 1786 Orlando, Florida 32801 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent’s license as a certified nursing assistant should be revoked or otherwise disciplined because she intentionally violated section 464.204(1)(b), Florida Statutes (2015),1/ by using force against or striking a patient, which Florida Administrative Code Rule 64B9-8.005(13)2/ defined as unprofessional conduct.
Findings Of Fact The Respondent is 25 years old. She is a certified nursing assistant (CNA) who holds Florida license CNA274235. Her license was first issued in December 2012. Her license was renewed in 2015, is clear and active, and was scheduled to expire on May 31, 2017. The Respondent has no history of any past license discipline. On December 27, 2015, the Respondent was employed at Sunnyside Village Retirement Community (Sunnyside Village), located in Sarasota, as a CNA in the skilled nursing unit. Patient A.B. was a patient there. A.B. was 98 years old and was considered frail in that she needed assistance with daily activities, could not move about easily, and used a wheelchair. She suffered from dementia that had worsened to mid-stage, and she was combative with staff at times. Although considered frail, she was a tall and fairly large woman. Her exact weight was not clear from the evidence. Estimates by the witnesses varied widely, from 110-115 pounds, to 130 pounds, to 190-200 pounds. When upset, she sometimes threw pictures, threw patient charts, and tried to bite and hit staff. The skilled nursing unit at Sunnyside Village had a secured area for the protection of patients like A.B. The area was not locked, but the dementia patients had wander guards that triggered an alarm to alert staff if the patients attempted to leave the secured area. A.B. had a wander guard attached to her wheelchair. On the morning of December 27, 2015, the Respondent was helping patients get ready for a church service when A.B. attempted to leave the secured area. Her wander guard triggered the alarm system, and a licensed professional nurse at the facility instructed the Respondent to get A.B. away from the exit doors. As the Respondent began to wheel A.B. away from the doors, the patient indicated that she wanted to go outside. The Respondent testified that she tried to “console” A.B. by saying she would take her outside after she finished getting the other patients ready for church. The patient did not seem to understand or accept what the Respondent was saying. Then, the Respondent started to wheel A.B. towards the T.V. room, which was near the nursing station at the other end of the hallway. A.B. became upset, took her feet off the footrests, planted them on the ground to stop the wheelchair, and attempted to swing her arm behind her to hit the Respondent. There was evidence that Sunnyside Village had policies that staff should back off and re-approach an agitated patient. It was not clear from the evidence how the policy was supposed to be applied in the situation the Respondent faced on December 27, 2015. In any event, it would not necessarily follow that a violation of this policy would result in unprofessional conduct. To get the patient to the T.V. room, the Respondent tilted the wheelchair to lift the patient’s feet off the ground and make it possible to wheel the patient down the hall. To accomplish this, the Respondent had to put her foot on a bar at the bottom of the back of the wheelchair, press down on the hand grips at the top of the back of the wheelchair, and elevate the front wheels enough to balance the chair on two wheels as she proceeded down the hallway. This was not easy to do, especially because the patient was considerably larger than the Respondent. The Respondent weighed about 100 to 105 pounds. She testified that she is “five feet, five.” However, she appeared to be closer to five feet tall than to five feet, five inches tall. The Respondent thought it was only necessary to raise the front wheels two or three inches, but it does not seem plausible that she could maintain that position for long while pushing the wheelchair down the hallway. Witnesses who saw the Respondent perform the maneuver later thought the front wheels were closer to 12 inches off the ground, creating close to a 45- degree angle of recline. The Respondent thought this wheelchair maneuver was acceptable under the circumstances. There was testimony that it would be acceptable to raise the front wheels to prevent a patient who planted his or her feet on the ground from pitching forward and falling out of a wheelchair, but not to wheel a patient a long distance on two wheels. The Respondent was not charged with the use of force against the patient by wheeling her on two wheels for a long distance, and there was no evidence doing so constituted the use of force against the patient. The Respondent left A.B. in the T.V. room and went back to the other patients getting ready for the church service. Almost immediately after being left in the T.V. room, A.B. left the room and wheeled herself back down the hallway to the same exit doors, again setting off the alarm. When she heard the alarm, the Respondent walked back down the hallway to the exit doors to get A.B. and return her to the T.V. room. The Respondent repeated her attempt to console the patient and began to wheel her back to the T.V. room. The Respondent was speaking in a loud voice in order to be heard by A.B., who had removed her hearing aids. The patient was agitated and combative and also very loud. The loud commotion drew the attention of a physical therapy assistant named Megan Campbell, who was in the patient room closest to the exit door, and by another physical therapy assistant named Mr. Thomas Wilson, who was in the second patient room from the exit door. At approximately the same time, an occupational therapist named Rebecca Cirillo was walking towards the exit door from the nursing station about 50 feet away. Mr. Wilson thought the Respondent sounded “pretty angry.” Ms. Campbell thought the Respondent was speaking loudly and seemed frustrated. Ms. Cirillo heard the patient “hollering” and the Respondent “yelling” and sounding “irritated” and “agitated.” None of them were aware that the patient was not wearing her hearing aids and that the Respondent had to speak loudly just to be heard by the patient. Mr. Wilson was kneeling on the floor putting footrests on a wheelchair as the Respondent and her patient passed by the door of the room he was in. He looked up and saw them from their left sides. By the time Ms. Campbell reached the doorway of the patient room she was in, the Respondent already had passed. Her view of the Respondent and her patient was from their back and left side. Ms. Cirillo’s view was from the front. All three witnesses thought they saw the Respondent angrily and intentionally strike the patient with her right hand and jerk the front wheels of the wheelchair up and down. Mr. Wilson and Ms. Campbell saw the Respondent’s right arm and hand swing quickly forward towards the patient’s right side. Ms. Campbell described an intentional and forceful “slap-like” motion across the Respondent’s body towards the right side of the wheelchair. Mr. Wilson thought the Respondent’s hand landed in the area of the patient’s head, neck, or shoulder. Mr. Wilson and Ms. Campbell admitted that they did not have a clear view and could not see actual physical contact. Mr. Wilson said he heard the patient make a grunt-like noise and flinch from what he thought was a hand-strike. Ms. Campbell did not hear the patient make a noise or flinch. Ms. Cirillo said she had a clear view and saw the Respondent slap the patient on her right arm. Ms. Cirillo and Ms. Campbell saw the Respondent move laterally to the left to avoid the patient’s arms and hands, which she was flailing over her head in an attempt to hit the Respondent. All three witnesses saw the Respondent jerk the front wheels of the wheelchair up twice, the second time after they had dropped back down hard. Mr. Wilson and Ms. Cirillo thought the front wheels were six to twelve inches off the ground, closer to twelve. Ms. Campbell could not give an estimate in inches but said saw the Respondent “very roughly jerk” the front wheels up “a good amount.” The way the wheelchair “snapped back” made Ms. Cirillo concerned for the patient’s safety. As she passed the Respondent in the hallway, Ms. Cirillo said, “you can’t do that.” The Respondent testified that she told Ms. Cirillo the patient’s hearing aids were out and that Ms. Cirillo replied, “whatever.” The Respondent testified that she actually was not angry at the patient because she understood the patient could not help her dementia. She explained that she was not speaking loudly in anger, but only to be heard by the patient, who had taken her hearing aids out. She also explained that she was not striking the patient but trying to prevent the patient from hitting her in the face. She said she tried to defend herself by moving to the left and holding her right arm out to block the patient’s hand and arm. Finally, she explained that she lifted the front wheels of the wheelchair to keep the patient from injuring herself by pitching forward and falling out of the chair. She claimed she was able to softly lower the front wheels by quickly moving her right hand back to the wheelchair’s hand grip after removing it to block the patient’s arms and hands, which seems improbable. After the incident, the three therapists briefly discussed what they had witnessed. All three thought the Respondent’s actions were inappropriate. When Mr. Wilson and Ms. Campbell returned to the physical therapy section of the facility, they reported to their supervisor, who said they should file a report. There were no report forms in the therapy area, so Mr. Wilson got some from the nursing area. The therapists filled out the reports and filed them. The reports were brought to the attention of the facility’s director of nursing, Deborah Harcup, R.N., when she arrived at the facility at about noon that day. Nurse Harcup investigated by talking to the patient, the Respondent and the reporters, and by viewing a surveillance video of the hallway. A.B. did not respond when asked about the incident. There was no physical evidence that the patient had been struck or injured in any way, nor any emotional or psychological evidence that she had been abused by the Respondent. Nurse Harcup testified that the surveillance video was taken from a fisheye-lens camera that was in the hallway about where Ms. Cirillo was when she witnessed the incident. The video was grainy and indistinct, and it was impossible to discern anything from it. Nurse Harcup testified that the complaints against the Respondent were surprising to her. She knew the Respondent to be a good nursing assistant and not the kind who would become angry at a patient, much less use force or violence against a patient. Ultimately, Nurse Harcup decided to terminate the Respondent’s employment, not because of any conclusion she reached as to what actually happened, but simply because she was unable to determine with certainty from the various witness statements what actually had happened. The Respondent seemed to suggest that she might have been the victim of a conspiracy and falsely accused by the therapists because of workplace acrimony at Sunnyside Village. She testified that she previously had some kind of a problem with Ms. Cirillo that required the intervention of supervisors. There was no evidence as to what the problem was. Another indication of possible problems between the nursing staff and the therapy staff was Mr. Wilson’s concern that there would be repercussions from the nursing staff if it was made known to them that the therapists were filing abuse reports on an employee of the nursing staff. However, the Respondent’s conspiracy theory is rejected. The evidence, taken as a whole, was clear and convincing that the Respondent intentionally slapped at A.B.’s flailing arm, and did not just defensively hold her right arm out to block the patient’s arm and hand. However, the therapists misinterpreted the loudness of the Respondent’s voice as anger and frustration because they did not know the patient had removed her hearing aids, and they misinterpreted the force of the hand- slap and the reason for the abrupt movement of the wheelchair. The wheel chair movement was not as smooth as the Respondent thought and testified, but it was not the intentional use of force against the patient. The hand-slap was intentional, but it was not intended to be, and was not, violent or hard enough to harm or punish the patient. As Nurse Harcup testified, that would have been completely out of character for the Respondent. Both actions happened quickly, while the Respondent was dodging to the left and simultaneously raising the front wheels of the wheelchair to prevent the patient from pitching forward and hurting herself by falling out the front of the wheelchair onto the floor when she planted her feet. The entire incident was over very quickly, and the Respondent went about the business of returning the patient to the T.V. room without any further incident. The Respondent did not try to hide anything. It all happened out in the open in the middle of the hallway, where anyone around could see it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order: finding the Respondent guilty of unprofessional conduct, as defined by rule 649B-8.005(13), for intentionally striking the patient A.B. on the arm; suspending her license for 60 days, followed by probation for one year; requiring her to take a relevant course of continuing education; and requiring her to pay the costs related to the investigation and prosecution. DONE AND ENTERED this 3rd day of July, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2017.
