Opinion
No. CV 02 0516885 S
August 8, 2003
MEMORANDUM OF DECISION
INTRODUCTION
The captioned matter is an appeal from a decision (decision) of the defendant department of public health (department) which placed a finding of resident neglect against the name of the plaintiff, a registered nurse's aide, on the Connecticut registry of nurse's aides.
II STATUTORY FRAMEWORK
Federal law mandates that each state participating in the Medicaid program provide a comprehensive regulatory scheme designed to protect the health and welfare of nursing home residents. In particular, federal law requires that each participating state provide, through its survey and certification agency (in Connecticut, the department), a process for investigating and prosecuting complaints against nurse's aides. See 42 U.S.C. § 1395i-3 (g)(1)(C).
In Connecticut, the nurse's aide regulatory apparatus is established by the provisions of General Statutes §§ 20-102aa through 20-102ff. Section 20-102bb creates a registry of nurse's aides, and § 26-102cc (a) authorizes the department to receive, investigate and prosecute complaints against nurse's aides. Among the grounds for complaint against nurse's aides which are enumerated in § 20-102cc (a) is "resident neglect." Pursuant to § 20-102cc (a), the department is authorized to enter a finding of resident neglect on the registry of nurse's aides after conducting a hearing in accordance with the provisions of the Uniform Administrative Procedure Act (§§ 4-166, et seq.) (UAPA).
Under federal law, a nurse's aide found to have committed resident neglect is barred from employment in nursing homes, and the decision states, in part: "The effect of this Order is that, in accordance with federal regulations, respondent is prohibited from being employed in chronic and convalescent nursing homes and rest homes. Because this matter concerns a single instance of neglect, respondent may, after one year, petition the Department to have the finding removed from the Registry pursuant to Conn. Gen. Stat. § 20-102cc (b)." (Return of Record (ROR), p. 8.)
III MATERIAL FACTS
The department began the proceeding that culminated in the decision by issuing a notice of complaint (complaint) against the plaintiff that charged her with neglect of a resident of the nursing home that employed her. (ROR, pp. 12-13.) The department, by its hearing officer, conducted a hearing on the complaint. The issue is whether the hearing officer's findings of fact are supported by substantial evidence.
The complaint alleges:
1. You are listed on the Connecticut Nurse Aide Registry under Registration No. 00814095.
2. At all times mentioned in these claims, you worked as a nurse aide at Mediplex Rehabilitation and Skilled Nursing of Southern Connecticut in Milford, Connecticut.
3. At all times mentioned in these claims, Mediplex Rehabilitation and Skilled Nursing of Southern Connecticut held a license as a chronic and convalescent nursing home and/or rest home with nursing supervision.
4. On or about January 20, 2001, you neglected resident C.T. by taking your hand away from C.T. to reach for a chair thereby causing her to fall out of a hoyer lift transfer, causing her to sustain a comminuted right clavicular fracture and rib fractures.
(ROR, p. 12.)
The decision contains the following relevant findings of fact, each of which was either uncontested by the plaintiff or is hereby determined to have been the subject of substantial evidence:
5. A "Hoyer lift" is a brand name used to refer generically to a mechanical (hydraulic or electric) lift device that provides a total lift to a resident and prevents injury during a transfer. A pad is placed underneath a person's body, then the Hoyer lift can either be manually or electrically pumped up. A Hoyer lift is used when a person cannot provide any assistance in her transfer or when her body cannot be manipulated in a manual lift . . .
6. A Hoyer lift transfer requires two people to assist in the transfer: one to operate the mechanical lift and the other to guide the resident and provide emotional support . . .
7. On January 20, 2001, Ian O'Neill, C.N.A., was assigned to care for C.T. Mr. O'Neill had already dressed and positioned C.T. in the Hoyer pad before he requested respondent's assistance with C.T.'s transfer from her bed to her wheelchair. Mr. O'Neill operated the Hoyer lift while respondent guided C.T. during the transfer . . .
10. On January 20, 2001, respondent had both hands on C.T. at all times, in the vicinity of her ankles, during the transfer, except when respondent reached with her right hand for C.T.'s wheelchair to pull it underneath her. Respondent's left hand was still around C.T.'s legs . . .
11. While respondent was reaching for the wheelchair, . . . C.T. fell forward and fell out of the Hoyer lift, landing on her right side. The pad was still hanging on the lift after C.T. fell . . .
12. C.T. sustained a comminuted right clavicular fracture and nondisplaced fractures of her right fifth and sixth ribs . . .
13. On January 20, 2001, the facility's maintenance staff checked the Hoyer lift and found no mechanical problems . . . CT Page 9838
14. Although C.T. was known to have jerky, involuntary movements of her upper body, there is insufficient evidence to establish whether C.T. made any such movements during the transfer.
(ROR, pp. 4-5.)
The parties stipulated to the court that the department had both the burden of going forward and the burden of persuasion before the hearing officer. In order to meet each of those burdens, the department had to comply with the substantial evidence rule as to each element of resident neglect. In MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 778 A.2d 7 (2001), the Supreme Court articulated the substantial evidence rule as follows: "The substantial evidence rule governs judicial review of administrative fact-finding under UAPA. General Statutes § 4-183 (j)(5) and (6). Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record." (Internal quotation marks omitted.) Id., 136-37.
The findings of fact, or portions of particular findings of fact, which the plaintiff contests, and for which the court's search of the record has not developed substantial evidence, are: the portion of finding of fact 11 which states that while the plaintiff was reaching for the wheelchair, she "was not watching C.T."; finding of fact 8 which states: "C.T.'s wheelchair was not properly positioned when Mr. O'Neill and (plaintiff) commenced the Hoyer transfer . . ."; and finding of fact 15 which states: "A preponderance of the evidence establishes that C.T.'s injury resulted from respondent's neglect in acting as the `spotter' for C.T. during the transfer." (ROR, pp. 4-5.)
IV DISCUSSION A. Removal of One Hand
The complaint, which is the document which gave notice to the plaintiff of the charge she would have to defend at a hearing, charges that: ". . . you neglected resident C.T. by taking your hand away from C.T. to reach for a chair thereby causing her to fall. (ROR, p. 12.) Accordingly, it was the department's burden to establish that a spotter's removal of one hand from a patient being transferred by Hoyer lift is an act of neglect.
The only written material concerning the proper mechanics of moving a patient by Hoyer lift introduced before the hearing officer is respondent's Exhibit 1, a memorandum from the plaintiff's employer to its nursing service which is captioned "SUBJECT: Hoyer Lift." That document does not, expressly or impliedly, say that a spotter's having only one hand on a patient during a Hoyer transfer constitutes an act of neglect. When the court inquired of counsel for the department about this issue, the following colloquy took place:
The Court: Now, where is it that — where is it written that one hand on a patient during a Hoyer lift is neglect?
Mr. Shapiro: I don't believe it's written anywhere that one hand on a patient.
(Transcript of hearing before the court (Tr. 4-21-03), pp. 10-11.)
The only testimony on the subject of whether it is neglect for a spotter to have only one hand on a patient during a Hoyer transfer came from Christine Macrino, Director of Nurses at Mediplex of Southern Connecticut (Mediplex), who testified that she: is a registered nurse; has been director of nursing at Mediplex for six years; has been a clinical instructor at Norwalk Community College for certified nursing assistants; has participated in hundreds of Hoyer lifts; has reviewed manufacturers' operating manuals for Hoyer lifts; has instructed nursing staff how to perform Hoyer lifts; and, investigated C.T.'s fall at Mediplex on January 20, 2001. (Transcript of May 22, 2002, proceedings before hearing officer (Tr. 5-22-02), pp. 4-15).) Ms. Macrino testified that the plaintiff did not violate the procedure for foyer transfers by removing one hand from the patient. (Tr., 5-22-02, pp. 22, 25.)
In the absence of evidence, either in the form of an exhibit or testimony, that a spotter's removing one hand from a patient during a Hoyer lift is neglect, and in light of the expert testimony of Ms. Macrino that doing so was not neglect, there was not substantial evidence before the hearing officer to support the only act of neglect with which the plaintiff was charged and of which she had notice.
B. Position of Wheelchair CT Page 9840
While the only charge of neglect contained in the complaint is that the plaintiff "neglected resident C.T. by taking (her) hand away from C.T. to reach for a chair . . .," the decision does not state that the plaintiff's removal of one hand from the patient was an act of neglect. Rather, the finding of neglect in the decision is based on the hearing officer's conclusions that: "A preponderance of the evidence also establishes that C.T.'s wheelchair was not properly positioned to lower C.T. into the chair." FF8, 10, 11 . . .
"Attempting to place C.T.'s wheelchair in the proper position undoubtedly caused respondent to take her eyes off of C.T. and distracted her from giving her fill attention to C.T." (ROR, p. 7.)
The conclusion that the wheelchair was improperly positioned raises three issues: was proper notice given to the plaintiff of a charge that the wheelchair was improperly positioned; was there substantial evidence that the wheelchair was, in fact, improperly positioned; and, if there was such evidence, was there also substantial evidence that the plaintiff rather than Mr. O'Neill, was responsible for the placement of the wheelchair before the lift began.
1. Notice to Plaintiff
The UAPA contains two notice provisions which pertain to this case. Section 4-177 (a) states: "In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice." The other notice requirement is contained in § 4-182 (c), which states, in relevant part: "No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license."
In Jutkowitz v. Department of Health Services, 220 Conn. 86 (1991), the court said: ". . . the notice requirements in § 4-182 (c) are stricter than those in § 4-177 (b) because the former proceeding involves a more compelling private interest. When the potential result of an agency proceeding is the suspension of a license upon which a person depends in earning his or her living, due process requires that the notice given must advise the party of the facts or conduct alleged to be in violation of the law and must fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law." (Internal quotation marks and citations omitted.) Id., 92-93.
When asked by the court, at argument, to identify the act of neglect which the plaintiff had been given notice to defend, counsel for the department replied: "Your Honor, the — act of neglect was the totality of the circumstances." (Tr., 4-21-03, p. 11.) While the totality of the circumstances might, in an appropriate case, support an inference that an event did or did not occur (that is, a lawyer might use that phrase in marshalling evidence to support a point), the totality of the circumstances does not pass due process muster, nor does it pass § 4-182 (c) muster, as "facts or conduct which warrant the intended action . . .," which is the notice § 4-182 (c) requires. Because the actual act of neglect found by the hearing officer was improper positioning of the wheelchair, the plaintiff was not given proper notice to allow her to prepare to defend that charge.
2. Evidence of Improper Placement of Wheelchair
There was no evidence before the hearing officer that the wheelchair was improperly placed. The only evidence touching on the placement of the wheelchair is the testimony of Ms. Macrino, which follows:
Q. Do you have any criticism of the placement of the chair during the transfer?
A. No, because there really, due to the logistics of the resident areas in the resident rooms, there was no other suitable place to position the wheelchair other than where the staff had had it at that time.
(Tr., 5-22-02, pp. 22-23.)
3. Evidence Concerning Plaintiff's Responsibility for Placement of Wheelchair
There was no evidence before the hearing officer that the plaintiff was responsible for the placement of the wheelchair before the lift began.
C. Proximate Cause
If the removal of one of the plaintiff's hands from the patient was a proximate cause of the patient's fall, as charged in the complaint (ROR, p. 12), then the hearing officer impliedly concluded that if both of plaintiff's hands had been on the patient, she would not have fallen. There is no evidence in the record to support such a conclusion of proximate cause. In fact, the only evidence on this subject was the testimony of Ms. Macrino that a spotter is not to bear the weight of a patient. (Tr. 5-22-02, pp. 21-22.)
D. Prejudice
The parties have stipulated to the court that substantial rights of the plaintiff have been prejudiced by the decision, and the court so finds.
V CONCLUSION
The finding of resident neglect by the plaintiff is not supported by substantial evidence and was not the subject of proper notice to the plaintiff. Accordingly, the appeal is sustained and the matter is remanded to the department to remove the finding of resident neglect against the plaintiff's name on the registry of nurses' aides.
G. Levine, J.