Opinion
CV156030637S
02-22-2017
Anne-Marie Wellspeak v. Department of Developmental Services
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Henry S. Cohn, Judge Trial Referee.
The plaintiff, Anne-Marie Wellspeak, appeals from a final decision of the defendant, department of developmental services (the department) placing the plaintiff's name on the department's registry of employees who have been terminated or separated from employment for substantiated abuse or neglect. The proposed final decision was issued by a hearing officer on May 29, 2015 (Return of Record, ROR, Vol. I, pp. 9-13), and was adopted as final by the department's commissioner on June 9, 2015. (ROR, Vol. I, p. 7.) A motion for reconsideration was denied by the commissioner on July 30, 2015. (ROR, Vol. I, p. 1.) After an appeal to the Superior Court on September 8, 2015, the court on May 12, 2016, remanded the matter to the department for additional findings. These were issued on November 7, 2016 and adopted by the commissioner on November 30, 2016. (ROR, Supplemental, pp. 9-14.) The case has now returned to this court.
As the final decision appealed from herein resulted in the plaintiff's name being placed on the registry list, she is aggrieved for purposes of General Statutes § 4-183(a).
This case involves a registry list that the department is required to maintain for individuals that have been terminated or separated from their employment as a result of substantiated abuse or neglect. General Statutes § 17a-247b . The department is required to implement the registry by adopting regulations under the Uniform Administrative Procedure Act (UAPA). § 17a-247e. Under the regulations issued by the department, an employer must notify the department " of the substantiation of abuse or neglect by an employee who has been terminated or separated from employment for such abuse or neglect" within five days of receiving written notification by an authorized agency. The department then must " conduct administrative hearings . . . before placing any names upon the registry." The regulations also set forth the procedure for conducting the hearings and also provide a procedure for removing one's name from the registry. Regs. § § 17a-247e-2, e-5, e-7(d), e-8, e-9.
The key issue for the department's hearing officer at the hearing, in finding whether the department met its burden, is whether the employee was terminated by an employer for abuse or neglect; those so properly terminated are to be placed on the department's registry. One ground for finding " abuse" is set forth in § 17a-247a(1)(B), and it is this the section of the statute at issue here. This section defines abuse as " the wilful deprivation of services necessary to the physical and mental health and safety of an individual who receives services or funding from the department . . ."
After a hearing held on April 17, 2015, the hearing officer in a proposed final decision made the following findings of fact:
1. On January 20, 2015, Notice of Hearing was sent to [the plaintiff] via certified and first class mail. The Notice stated that the hearing would be held on April 17, 2015, at 10:00 a.m., at the Department of Developmental Services (" DDS"), 460 Capitol Avenue, Hartford, CT, to determine whether to place Respondent's name on the Registry. The Notice advised [the plaintiff] that if it is determined that [her] name [were] to be placed on the Registry, the Department and any private providers licensed or funded by the Department would be prohibited from hiring or retaining [her] in employment.
2. The [plaintiff] timely received the Notice.
3. At all times mentioned herein and relevant thereto, [the plaintiff] was employed by Allied Rehabilitation Centers, Inc., to provide direct care to DDS clients.
4. At all times mentioned herein and relevant thereto, Allied Rehabilitation Centers, Inc., was licensed and/or funded by DDS.
5. At all times mentioned herein and relevant thereto, client DL was a DDS client.
6. Allied Rehabilitation Centers, Inc. provided the [plaintiff] with the abuse/neglect and site-specific training.
7. The [plaintiff's] site-specific training included [her] duty/responsibility to ensure that client DL's medical information was current and that all physician orders were appropriately maintained/filed within client DL's file.
8. Via an email to Laurie Desjardin, Director of Residential Services for Allied Rehabilitation Centers, Inc., dated September 2, 2014, the [plaintiff] admitted to removing a doctor's order from client DL's med book " to sabotage her and the whole house."
9. The [plaintiff's] actions violated her abuse/neglect training as well as site-specific training.
11. Eric Elmendorf [from Allied Rehabilitation] conducted a comprehensive investigation and issued an investigation report. The investigation was prompt, comprehensive, and extremely thorough. The investigation report is relevant and reliable.
12. The investigator's findings in the investigation report conclude that the allegation of abuse was substantiated against Respondent given that the Respondent admitted to intentionally removing a physician's order from client DL's med book.
13. On September 12, 2014, [the plaintiff] was terminated from her employment, due to substantiated abuse.
14. On November 6, 2014, Allied Rehabilitation Centers, Inc. filed the Notice of Termination for abuse/neglect with the Department of Developmental Services.
15. DDS Lead Investigator Greg Brigandi reviewed and agreed with the investigator's findings of substantiated abuse against the Respondent. DDS is an authorized agency pursuant to the Connecticut General Statutes. (ROR, Vol. I., pp.10-11.)
Based on these findings of fact, the hearing officer made conclusions of law that may be summarized as follows: The department met its burdens of proof that the plaintiff was employed by an agency that was licensed by the department, that the plaintiff was terminated for substantiated abuse, and the substantiated abuse allegations were supported by the preponderance of evidence. " The record herein established . . . that on September 2, 2014 . . . the [plaintiff] admitted to removing a doctor's order from client DL's med book 'to sabotage her and the whole house.'" (ROR, Vol. I, p. 12.) The hearing officer continued: " The [plaintiff's] site-specific training included the [plaintiff's] duty/responsibility to ensure that client DL's medical information was current and that all physician orders were appropriately maintained/filed with client DL's file." (ROR, Vol. I, p. 13.)
The hearing officer concluded that the plaintiff had removed a doctor's order from the client's medical book, and this had violated her " abuse/neglect and site-specific training." The plaintiff's action " constituted abuse in that it demonstrates a willful deprivation of services necessary to the physical safety of client DL." (Id. ) The hearing officer's proposed order, subsequently made final by the commissioner, was to place the plaintiff's name on the registry list.
The plaintiff raised two issues on appeal. The first was that the hearing officer's decision did not meet the substantial evidence standard, as, at the administrative hearing, she disputed that she was the person that had removed the physician's order from the client's medical book. The hearing officer relied on the email that the plaintiff had sent and did not credit the plaintiff's subsequent statements. In reviewing the facts and conclusions of the hearing officer, the court must apply the test of substantial evidence.
The standard of review for an appeal from a ruling by the department has been stated by our Supreme Court as follows: " Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . . It is well settled [however] that we do not defer to the board's construction of a statute--a question of law--when . . . the [provisions] at issue previously ha[ve] not been subjected to judicial scrutiny or when the board's interpretation has not been time tested. In such a case, our review of those provisions is plenary." (Citations omitted; internal quotation marks omitted.) Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 603, 893 A.2d 431 (2006). See also Costello v. Commissioner of Developmental Services, 128 Conn.App. 286, 290, 16 A.3d 811 (2011). In light of this statement of the law from Supreme Court, the court concludes that the substantial evidence standard has been satisfied. See also Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008) (" It is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all or none of a given witness' testimony"). The hearing officer found in the record appropriate support for the facts and conclusions of the final decision.
The second issue raised by the plaintiff resulted in the remand order issued by this court on May 12, 2016. As indicated, the abuse raised by the department was that of " wilfully depriving DL of services necessary to the physical safety of DL." The plaintiff argued at the initial hearing to the court in this appeal that there was no actual harm to the patient, DL. The remand order directed the department to determine (1) what the phrase " deprivation of services" means in the definitional section, § 17a-247a, and (2) under the definition as construed by the department, for a factual finding by the hearing officer on any such deprivation.
In the November 7, 2016 hearing officer's decision as approved on November 30, 2016, the hearing officer made the following points: (1) the fact that the client did not miss receiving her medications did not change or diminish the abuse committed by the plaintiff in her intentional effort to deprive the client of receipt of the prescribed medications, (2) the definition of abuse in this instance did not have an element or require that there be an adverse impact on the individual; but rather, a willful deprivation of services necessary to the physical safety of an individual, (3) the record supported that the plaintiff acted willfully as seen in the email sent to the director of residential services at Allied Rehabilitation.
The decision indicates that although notice was given to the plaintiff, neither she nor or her then-counsel appeared at the renewed hearing held by the hearing officer. This court also gave notice to the counsel of the date for a further hearing in the court. An " in-lieu" appearance was subsequently filed by the plaintiff. Neither the attorney nor the plaintiff appeared on February 21, 2017.
The definitions of " financial exploitation, " and " sexual abuse" involving sexual contact do require actual harm.
The factual findings and the conclusions of the hearing officer have sufficiently replied to the issues raised by the court in the order of remand. As such, the court finds that the department's position rejecting the need for actual harm is one of long standing (see supplemental record, p. 101), reasonable and gives effect to the apparent intent of the legislature in passing the statute in question. It is accepted by the court. See Lieberman v. Aronow, 319 Conn. 748, 756, 127 A.3d 970 (2015).
Therefore the administrative appeal is dismissed.
The court, Schuman, J. had placed a stay in effect on the department's placing the plaintiff's name on the registry list. That stay is now lifted.