A lonely man and an Alzheimer’s patient. Is it sexual assault or consensual sex?

About 9 p.m. on Feb. 15, a 79-year-old woman with Alzheimer’s disease was found naked in her bed at the Eagle Crest nursing home in Carmichael, her gown and brief at the head of her bed.

A male resident, 70, who had been observed five months earlier touching the elderly woman’s breast, was in the room, too, pulling up his pants and returning to his wheelchair, according to state licensing documents.

The woman would later say that she had been “intimate” with her deceased husband. The male resident, who was cognitively intact, recalled the next day that he had been flattered when she took off her clothes that night and called him “darling,” the records state.

So what happened here? Was this a sexual assault, as state health officials contend? Or did the state overreact and misconstrue a “quasi-consensual” relationship between a lonely man and a confused woman, as Eagle Crest’s administrator argued to state officials?

The startling allegations involving one of the area’s largest nursing homes have prompted the corporate owner, Genesis HealthCare Inc. of Pennsylvania, to voluntarily close the 126-bed facility, displacing dozens of residents and their families. The nursing home, located along a busy stretch of Fair Oaks Boulevard, is slated to officially close in October, with the remaining patients sent to three other Genesis-owned facilities in Carmichael, Stockton and Willows.

The company’s voluntary closure of Eagle Crest staved off an attempt by the California Department of Public Health to persuade the federal government to yank the troubled facility’s Medicare certification and force it out of business. Instead, the company acted first, letting the state know in a July letter that it reserves the right to reapply for a new provider agreement if it chooses to reopen.

The February incident involving the two residents raises wrenching questions about what constitutes sexual abuse in a nursing home, especially among the memory-impaired – and who is responsible for sorting it out.

“Consent is a very tricky thing when you’re talking about dementia,” said Claire Day, chief program officer at the Alzheimer’s Association of Northern California and Northern Nevada. “And when someone loses that ability to give consent isn’t always clear – it’s very gray.”

California has no law that defines how or when a person with dementia can consent to sexual relations. It is certainly no crime for senior citizens to be sexually active, at home or in a skilled nursing facility.

But where is the line, legally and ethically, when one party may not fully understand what is happening, and with whom?

“If you have moderate to severe dementia, you are unable to consent to sexual relations – period,” said San Francisco elder abuse attorney Kathryn Stebner, who has represented numerous victims and their families.

Stebner said that sexual assaults in nursing homes are prevalent, although few facilities provide meaningful training to staff, she noted. Individuals with dementia often exhibit sexually inappropriate behaviors and need skilled caregivers who take extra measures to protect them, she said.

When rapes occur, the attorney said, family members often are the least able to confront the brutal facts – or even believe a loved one’s story.

“The lack of knowledge, training – even people talking about it – is shocking,” Stebner said. “It is so swept under the rug.”

In one particularly egregious case, Stebner filed a civil suit on behalf of an 88-year-old woman who was raped in a Monterey nursing home in 2010 by an unknown assailant. The woman, who was in the home for a short-term stay while she recovered from a stroke, contracted an incurable sexually transmitted disease in the attack. She had had only one sexual partner her entire life, her husband of 70 years. He tested negative for the disease.

“It was horrible,” said the attorney, who settled the family’s case against Monterey Pines Skilled Nursing Facility for an undisclosed sum. The facility has since been sold and renamed.

‘Severely impaired’

The issue of sexual assaults in long-term care facilities has garnered national attention this year with media accounts of vulnerable women and men falling prey to staff members, fellow residents and outsiders. An in-depth report earlier this year by CNN found that more than 1,000 nursing homes nationwide had been cited for mishandling or failing to prevent alleged sexual assaults in their facilities.

In the Eagle Crest case, the state said pointedly that the facility failed to protect the 79-year-old woman from sexual abuse, and did not follow its own policy to prevent abuse or to intervene in risky situations. The California Department of Public Health determined that this failure placed all 36 female residents living in Eagle Crest at risk for sexual abuse.

State records show the woman was admitted to the facility in May 2015 with a diagnosis of Alzheimer’s. The following year, she was assessed as being “severely impaired.”

The man, with severe kidney disease and diabetes, also was admitted to Eagle Crest in 2015. His sexual behavior was flagged several times in nursing home records, including one instance in September 2016 when he was seen touching the elderly woman’s breast. On a later date, the male resident was found in his bathroom entrance with the female resident; he stated that she had “touched him.”

In his care plan, the facility noted that the man was “at risk for inappropriate sexual behaviors.” A psychiatric entry in September 2016 stated that he had been counseled “not to engage in such behavior,” the state’s investigation found.

Despite the notations, the man was not placed on one-to-one monitoring before the Feb. 15 incident, a certified nurse assistant told state inspectors.

It was that February incident at the woman’s bedside that brought the state fully into the picture when the facility self-reported possible abuse. Health department records show that the staff’s exam of the woman that night revealed non-bloody, vaginal secretions.

At 3:01 p.m. on Feb. 16, the state amped up the alarms and called an “Immediate Jeopardy” at the facility, a regulatory red-alert that a deficient practice has caused or is likely to cause serious injury, harm or death.

“Residents are dependent on the facilities to provide quality care and protection,” wrote public health official Jackie Phillips, in a July 9 letter to then Eagle Crest administrator Harumi Hurrianko.

“There were no clear measures demonstrated that the facility protected” the female resident from the male resident, wrote Philips, a CDPH district manager.

Hurrianko, who now works at an assisted-living facility in Folsom, challenged the state’s findings as being “incomplete and misleading.” In her June 30 letter to Phillips, she said the state had overblown the February incident and that “this is not a case of a sexual predator posing a threat to other residents.”

She did not return a phone call seeking comment.

Hurrianko stated in her letter to the state that the 79-year-old woman sometimes sought out the male resident in the dining room or after dinner, and that he “appeared to enjoy (the woman’s) attention.” The woman’s sister described her as “a flirt” who could be “touchy,” and was known to frequently touch other residents’ hands, Hurrianko stated.

In the letter, the former administrator downplayed the significance of the male patient touching the woman’s breast in 2016, saying that he had claimed the elderly woman placed his hand there.

“In retrospect – which admittedly always seem clearer – the two residents may have had some kind of quasi-consensual relationship – he was lonely, and she was providing attention that she might have believed was directed at her (late) husband – that may or may not have been progressing toward some kind of sexual activity,” Hurrianko wrote.

‘No reason to investigate’

A Bee review of state documents, including the letters between nursing home executives and state regulators, shows that multiple agencies in the Sacramento region played a role in investigating the incident last February at the facility.

In February, Sacramento County sheriff’s deputies responded to the facility at 8336 Fair Oaks Blvd., where both residents were interviewed, according to Hurrianko’s June 30 letter. The investigators then told facility staff that “there was no evidence of any crime, and no reason to investigate the matter further,” Hurrianko wrote.

State documents show the woman was taken that night to the emergency department at Mercy San Juan Medical Center. She was returned to Eagle Crest about 2 a.m. after law enforcement, consulting with emergency room staff, decided they were “not going to do anything at this time” and recommended her discharge, the facility wrote in its plan of correction with the state.

Just hours later, on Feb. 16, the woman also was seen at UC Davis. According to the facility’s notes, she came back to Eagle Crest with a report that stated: “You had no complaints of pain or injury, your exam showed no signs of trauma, you reported you feel safe at your facility and do not remember anyone assaulting you.

“After social work (sic) interviewed the police, the hospital cleared (the woman) medically to return to Eagle Crest because the police ‘felt no evidentiary exam was warranted,’ ” the facility told the state in its report signed July 3.

When state health inspectors interviewed the facility’s medical director in May, he said he completed a “typical interview and exam” on Feb. 17 but did not do a pelvic exam, state documents show.

“He stated the decision to take no further action was based on the (Sheriff’s Department) determination of no suspicion of abuse,” the records say.

The facility’s administrator also told the state she saw no need to follow up on any sexual assault because law enforcement “didn’t see a crime,” state records show.

Ann Wolbert Burgess a psychiatric nursing professor at Boston College and an expert in the study of sexual assault, acknowledged that “these are not easy cases” for law enforcement. Potential victims with memory loss require special care and should be interviewed by people with expertise in trauma, the elderly and dementia, she said.

Police often will complain that a memory-impaired individual can’t give a coherent statement, she said.

“The point is, police can get forensics, and forensics will tell the story,” Burgess said. “It’s the job of the police to collect evidence.”

Sheriff’s Department spokesman Shaun Hampton, responding to questions from The Bee, said last week the Eagle Crest matter is being “looked into a little further.’ Investigators are filing reports with other departments, as is required, and the case is “somewhat ongoing,” he said.

“We handle these situations very carefully because of the nature of them,” he said.

Representatives of both hospitals declined to discuss specifics of the woman’s treatment, citing confidentiality. Both hospitals said they had policies in place to care for suspected sexual assault victims, while also fulfilling legal requirements.

The state declined to say what has become of the two residents – whether they remain housed at Eagle Crest, and whether they will move to the same facility when Eagle Crest closes. After the bedside incident, facility officials told the state the residents were being separated on different hallways and dining rooms, and that each was placed on one-to-one supervision.

Day of the Alzheimer’s Association said the case, with its dueling interpretations, is evidence of a need for training and education.

“I think facilities should be prepared for these types of situations,” she said.

Marjie Lundstrom: 916-321-1055, @MarjieLundstrom