Hearns v. District of Columbia Department of Consumer & Regulatory Affairs

704 A.2d 1181, 1997 D.C. App. LEXIS 248, 1997 WL 698012

• Court: District of Columbia Court of Appeals
• Decided: October 30, 1997
• Docket: 96-AA-750
• Status: Published

Opinions

PER CURIAM.

Petitioner Hearns appeals from a decision of the District of Columbia Department of Consumer and Regulatory Affairs (DCRA), in which it ordered that petitioner’s name be placed in the Abuse Section of the Nurse Aide Registry, pursuant to 29 DCMR §§ 3251.1 and 3251.2 (1991). She asserts that the decision is not in accordance with the law and is unsupported by substantial evidence in the record. We affirm.

I.

Petitioner was employed as a Certified Nursing Assistant at the Grant Park Care Center. An administrator (and former executive director) at the center filed a complaint-incident report with the District of Columbia Service Facility Regulation Administration (SFRA). According to the report, the administrator, Barbara Nash, observed petitioner pull a resident, Laura Jordan, by the arm from the corridor into Ms. Jordan’s room and shake her finger in Ms. Jordan’s face in a reprimanding manner. When questioned about this behavior by the administrator, petitioner stated that she meant no harm but that “[t]his is my way.” On her employee counseling form, petitioner admitted to physically pulling Ms. Jordan by the arm but denied intending to abuse her.

An extensive investigation of the reported incident of abuse was conducted by Nancy Lee, Nurse Consultant to the DCRA. Her report included information that, while Ms. Jordan could “be difficult to handle” and had “periods of inappropriate outbursts,” she “was usually easily directed.” Nurse Lee’s investigation concluded that the allegations of abuse were substantiated.

The DCRA issued a Notice of Proposed Action to list petitioner’s name in the Abuse Section of the Nurse Aide Registry, in accordance with 29 DCMR §§ 3252.6, 3252.7 (1991). Petitioner requested a hearing which was held before an Attorney Examiner in the Office of Adjudication, DCRA. Petitioner has provided us with no transcript of the hearing. According to the decision and order of the examiner, however, petitioner in her testimony denied abusing Ms. Jordan but admitted that she shook her finger in her face and firmly held her by the wrist. Testimony by Barbara Nash, credited by the examiner, “was to the effect that she personally observed [petitioner] talking roughly to the resident, immediately followed by [petitioner] grabbing the resident’s arm and dragging her to her room from a hallway location, while shaking her finger in the resident’s face.” According to Nash, petitioner had attended regularly scheduled staff training sessions concerning “appropriate staff behavior in the face of difficult situations,” and her behavior at the time in question was “highly inappropriate” under the facility's policies.

Following the hearing, the Attorney Examiner issued a decision and order and concluded that petitioner had committed an act of violence against a nursing home resident in violation of 42 CFR § 483.13 (1996). Accordingly, the Examiner ordered that petitioner’s name be placed on the Abuse Section of the Nurse Aide Registry maintained by DCRA.

II.

Our review here is limited to determining whether the agency made findings of fact supported by sufficient evidence and made a decision which rationally follows from the facts. Citizens Ass’n of Georgetown, Inc. v. District of Columbia Zoning Comm’n, 402 A.2d 36, 41 (D.C.1979). We review the agency’s decision to determine whether it is arbitrary, capricious or an abuse of discretion. Cooper v. District of Columbia Dep’t of Employment Servs., 588 A.2d 1172, 1174 (D.C.1991) (noting the agency decision is presumed to be correct and the petitioner bears the burden of demonstrating error).

Petitioner contends that the government did not meet its burden of proof in demonstrating that she committed abuse because it relied on administrator Nash’s observations of the alleged incident. Petitioner asserts that there was no additional evidence to show that Nash’s observations were more accurate than petitioner’s account of what happened during the incident. Petitioner’s argument is without merit, for the agency examiner was entitled to assess the credibility of each witness. See Allen v. District of Columbia Bd. of Elections & Ethics, 663 A.2d 489, 495 (D.C.1995) (“Deference to the Board’s findings is especially appropriate where ... the decision was based in part on its assessment of the credibility of the witnesses _”). The agency examiner was entitled to evaluate Nash’s eyewitness account of the incident, and also petitioner’s admission that she had reprimanded and grabbed Ms. Jordan by the wrist. The examiner could also consider petitioner’s admission that her treatment of Ms. Jordan was “[her] way” of handling difficult patients. Furthermore, there was no error in the examiner’s considering the testimony of the nurse investigator whose testimony included some hearsay. Wisconsin Avenue Nursing Home v. District of Columbia Comm’n on Human Rights, 527 A.2d 282, 288 (D.C.1987) (noting “hearsay evidence can serve under some circumstances as ‘substantial evidence’ on which to base a finding of fact”).

Petitioner also asserts that the Attorney Examiner erred in failing to consider the definition of “abuse” as found at 42 CFR § 488.301 (1996). Abuse is defined there as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” Petitioner asserts that the government failed to prove that she acted willfully or that the resident suffered any physical harm, pain or mental anguish.

While it is unclear from the record exactly what definition of “abuse” was employed, we find no error in the agency’s finding of fact that petitioner committed an act which constituted violence against the resident in violation of 42 CFR § 483.13(c)(1). That section states in part:

(1) The facility must—

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion....

The government points out that 29 DCMR § 3299.1 (1991), part of the District’s comprehensive regulations governing nurse aides, defines “abuse” as “the infliction of physical or mental harm on a nursing home resident.” Applying that definition of abuse, the record supports the agency’s finding that petitioner’s name should be placed on the abuse list of the registry.

Even if the agency applied the definition of abuse urged by petitioner, namely that found in 42 CFR § 488.301, petitioner’s argument would not prevail. Petitioner argues that she did not intentionally (“willful[ly]”) abuse the resident, but the regulation cannot reasonably be understood to mean that she must have acted with a “bad purpose” (i.e., to abuse); rather, “willful” in this regulatory context denotes a conscious decision to do the act which the law forbids. Cf. Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) (except in criminal context where “willful” may require “more ... than the doing of the act proscribed by the statute,” word commonly “denotes an act which is intentional rather than accidental”). The record here permits a finding that petitioner intentionally ¹ “inflict[ed] ... intimidation” upon the resident in a manner “[un]reasonable” both in itself and in light of the training petitioner had received for dealing with “difficult situations.” Moreover, although there was no apparent proof that the dragging or pulling of the resident resulted in “physical harm [or] pain,”² the agency could rationally con-elude that rough pulling and rebuking of any elderly individual would naturally cause such pain or at least “mental anguish.” It is true that no pattern of repeated maltreatment of residents by petitioner was alleged or found, and a single act of reprimanding a resident and dragging her a short distance (though by a nurse aid admitting that “[t]his is my way”) may strike some as disproportionate to the remedy of permanent placement of petitioner’s name in the Abuse Section of the nurse aide registry.³ But this court may not substitute its own notions of abusive conduct for those of the agency charged with interpreting and applying the regulatory standard. See, e.g., Kegley v. District of Columbia, 440 A.2d 1013, 1018 (D.C.1982). The position of nurse aide, carefully regulated both federally and locally, is one of trust; petitioner’s training had provided her with ample notice that handling difficult patients in the manner she did here was improper; and the definition of “abuse” in the context of this dependency relationship may fairly be understood to reach behavior short of more flagrant forms dealt with in other settings.

Judge Schwelb argues that the hearing examiner “made no attempt to examine the regulatory language or to discuss its application to the facts of this case, nor did he attempt to articulate or ascertain the legal meaning of the term [‘abuse’].” Post at 1185. But the legal meaning of the term is set forth in the definitions (in substance the same) which we have discussed, and there is not the slightest reason to think that the examiner ignored it. Nor is it apparent how additional “examin[ation of] the regulatory language” could have led the examiner to evaluate differently the uncomplicated testimony that led to his finding of abuse. Since the reasoning of the examiner can be easily traced from his recitation of the evidence and the conclusion he drew from it, there is no basis for the remand and further articulation of reasons that Judge Sehwelb would require.

III.

Accordingly, the decision of DCRA is

Affirmed.

1 . When interviewed at the time of the incident, petitioner explained that though she intended no harm to the resident, "[t]his is my way.”

2 . According to the investigator’s report, the resident had Alzheimer’s Disease and could not be engaged in a "meaningful” interview as a result.

3 . 42 CFR § 483.156(c)(1)(iv)(D) (1996) provides that information "on any finding by [a] State ... of abuse” by a nurse aide "must remain in the [nurse aide] registry permanently, unless the finding was made in error, the individual was found not guilty in a court of law, or the State is notified of the individual’s death.” Notably, 29 DCMR § 3253.9 (1991) states differently that ”[a)n entry in the Abuse Section of the Registry shall remain for a period of five [5] years, after which the nurse aide may apply for its removal by submitting the documentation requested by the Acting Director.” DCRA must reconcile these two provisions in the event petitioner — and anyone else — seeks removal of their name from the Abuse Section of the registry.