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Nichols v. State, Department of Health and Human Services

Superior Court of Maine, Kennebec

November 26, 2014

JAMES NICHOLS, Petitioner,
v.
STATE OF MAINE DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondent.

ORDER ON PETITIONER'S M.R. CIV. P. 80C APPEAL

Michaela Murphy justice

Petitioner James Nichols filed a M.R. Civ. P. 80C appeal challenging the Final Decision by the Hearing Officer for the Department of Health and Human Services ("DHHS" or the "Department") affirming the involuntary discharge of Mr. Nichols on an emergency basis by Richmond Elder Care ("REC"). The Decision upheld REC's emergency involuntary discharge because it found Mr. Nichols posed a direct threat to REC's residents. For the reasons discussed below, the Court affirms the Department's Decision and denies Mr. Nichols' appeal.

I. Background and Statement of Facts

Mr. Nichols is a 64 year-old recovering alcoholic with Post Traumatic Stress Disorder ("PTSD"). See Record, Tab B, Hearing Transcript at 74:20-75:2. Mr. Nichols' PTSD is due in part to physical abuse he suffered from his alcoholic father as a child. Record, Tab A, 1/29/14 Final Decision ("Decision"), Finding of Fact ("FoF") 14-15; Tab B, Hearing Transcript at 123:2-7. Mr. Nichols received clinical therapy for his PTSD from Lynn Schwarz, a certified clinical nurse specialist in psychiatry and mental health. Hearing Transcript at 113:14.

Mr. Nichols was admitted to REC on or about May 1, 2013. Decision, FoF 1. REC is licensed as a private non-medical institution ("PNMI") Level IV under the Level IV PNMI Regulations. See id. at FoF 2. Upon his admission, Mr. Nichols was assigned to a room with another individual. Id. at FoF 4. This individual left REC and Mr. Nichols, remained in his room without a roommate for approximately one week. Id. at FoF 5-6. Subsequently, Ms. Wagurak, REC's residential service coordinator, asked Mr. Nichols if he would move to another room at REC so that his room could be freed up for incoming residents. Hearing Transcript at 8:6-19. Mr. Nichols met with his proposed new roommate ("Roommate 2) and agreed to move into a new room with him. Id. at 8:6-9:4. On or about June 9, 2013, Mr. Nichols moved into said room. Decision, FoF 8.

Roommate 2 had a prescription that allowed him to drink two beers per day. Id. at FoF 9. Roommate 2 drank more than two beers a day. Id. at FoF 10. Roommate 2 regularly urinated in portable urine containers, which he was responsible for cleaning and emptying. Id. at FoF 11-12. Roommate 2 did not regularly clean and empty his urinal containers. Id. at FoF 13. Mr. Nichols subsequently explained that the air conditioner circulated the smell of urine and beer around the room. Hearing Transcript at 73:13-74:10. Mr. Nichols explained that this smell reminded him of his abusive upbringing. Id. On June 10, 2013, Mr. Nichols went back to his old room, which contained an empty bed, but was informed by REC staff that it was no longer his room. See Record, Tab Nichols 3, REC Progress Note p. 11, 3pm-l 1pm note.

On June 16, 2013, Mr. Nichols complained harshly to REC staff about Roommate 2's drinking and feared he was "being put in danger by being in the same room as [Roommate 2]" and that he "might 'snap'." Decision, FoF 16-17. Also on June 16, 2013, Mr. Nichols told REC staff that he would "break [Roommate 2's] fingers if [he] turned off the air conditioner in their room. Id. at FoF 18. REC staff asked Mr. Nichols to step away from his bed and stop yelling. Record, Tab Nichols 3, REC Progress Note 14. Mr. Nichols complied and laid down on his bed. Id. at 14. That same day, Mr. Nichols yelled at Roommate 2, "I am ordering you as a marine to dump your urinals you fucken [sic] pig and if you don't I will dump it on you. Now I have spoken do you understand?" Id.

Later on June 16, 2013, REC left messages for Tim Dogerty, Mr. Nichols' case manager regarding Mr. Nichols' behavior. Hearing Transcript at 128:13-129:6. Mr. Dogerty went to the facility the next day and spoke to Mr. Nichols. Id. Afterwards, he told Ms. Gibbs, the facility administrator, that Mr. Nichols needed to be moved to a different room. Id. Ms. Gibbs, however, informed Mr. Dogerty that there were no rooms available, as Mr. Nichols' previous room had been promised to somebody else. Id. at 130:9-5.

On June 18, 2013, Ms. Wagurak, transported Mr. Nichols to a regularly scheduled therapist appointment. Decision, FoF 24. During that session, Mr. Nichols expressed to his therapist, Ms. Schwartz, that he had been having homicidal thoughts regarding Roommate 2. Hearing Transcript at 111:9-112:9. In particular, Mr. Nichols reported he wanted to brutalize and beat up Roommate 2. Id. at 123:17-124:2. He stated that "jail would be worth it just to deal with this situation." Id. Mr. Dogerty attended the aforementioned therapy session. Decision, FoF 26.

While the therapy session was underway, Ms. Wagurak waited by the car. Id. at FoF 27. Before the therapy session was complete, Mr. Dogerty told Ms. Wagurak that REC needed to move Mr. Nichols' room and informed her of Mr. Nichols' homicidal ideation. Hearing Transcript at 131:14-132:10. Mr. Dogerty also told Ms. Wagurak to talk to an administrator at REC about whether to take Mr. Nichols back to REC. Id. Mr. Dogerty expressed that he thought it was safe to take Mr. Nichols back as long as he didn't have to be in the same room as Roommate 2, but that if they were going to discharge Mr. Nichols, they had to send him to a hospital. Id. Ms. Wagurak did not think it was safe to first transport Mr. Nichols back to REC and then call 911 to take Mr. Nichols to the hospital. Decision, FoF 30.

Ms. Schwarz and Mr. Nichols subsequently came down to Ms. Wagurak's car. Id. at FoF 31. Mr. Nichols became agitated and Ms. Wagurak decided to call 911 because she felt threatened. Id. at FoF 32. Ms. Schwarz volunteered to drive Mr. Nichols to the hospital where he was admitted. Id. at FoF 33-34. Ms. Schwarz testified that she deemed it a social, not psychological emergency because there was nowhere for Mr. Nichols to go but the hospital since he could not return to the same room as Roommate 2. Hearing Transcript at 112:13-19. Ms. Schwarz believed Mr. Nichols would be ok as long as he was not in the same room as Roommate 2. Id.

On June 25, 2013, the hospital determined it would be safe to discharge Mr. Nichols to REC as long as he was not housed with Roommate 2. Decision, FoF 36. Ms. Gibbs, however, told the hospital that Mr. Nichols could not come back to REC because he had "murderous thoughts." Id. at FoF 37.

Ms. Gibbs testified that Mr. Nichols' room could not be changed because nobody would room with him besides Roommate 2. Hearing Transcript at 54:7-55:13. Ms. Gibbs did not, however, ask people whether they would room with Mr. Nichols. Id. As a result of REC s involuntary discharge, Mr, Nichols ended up spending 98 days as a patient at the hospital until he was placed in a different assisted living facility. Id. at 78:14-18.

A. Procedural History

On August 12, 2013, Mr, Nichols appealed REC's decision to involuntarily discharge him. Record, Tab HO-2, On November 25, 2013, an administrative hearing was held. Decision, p. 1. The issue to be determined by the Hearing Officer was:

Did [REC] act as permitted under the DHHS Regulations Governing the Licensing and Functioning of Assisted Housing Programs when it sought to involuntarily discharge James Nichols on an emergency basis against his will.

Id. at p. 5.

B. The Hearing Officer's ...


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