Hong v. STATE DEPT. OF SOC. & HEALTH SERV.

192 P.3d 21
CourtCourt of Appeals of Washington
DecidedSeptember 15, 2008
Docket59549-1-I
StatusPublished
Cited by2 cases

This text of 192 P.3d 21 (Hong v. STATE DEPT. OF SOC. & HEALTH SERV.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hong v. STATE DEPT. OF SOC. & HEALTH SERV., 192 P.3d 21 (Wash. Ct. App. 2008).

Opinion

192 P.3d 21 (2008)

Sue HONG, dba Heritage House II, Respondent,
v.
WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Appellant.

No. 59549-1-I.

Court of Appeals of Washington, Division 1.

September 15, 2008.

*22 Samuel Sangki Chung, Lee Anav Chung LLP, Seattle, WA, for Respondent.

*23 Daphne Jiling Huang, Atty. Gen. Office, Seattle, WA, for Appellant.

BECKER, J.

¶ 1 The Department of Social and Health Services revoked Sue Hong's license to operate an adult residential facility. Administrative hearings affirmed the revocation. Hong appealed to superior court, contending that the administrative law judge arbitrarily limited her cross-examination of a key witness. The superior court agreed and remanded for further proceedings. On remand, the department did not produce the witness but nevertheless decided again to revoke Hong's license. The same superior court judge held a second hearing, and this time reversed the revocation of Hong's license.

¶ 2 The department contends that the superior court lacked jurisdiction at the second hearing because Hong did not file a new petition for review after the remand hearing. We reject this argument. Where an agency has improperly excluded evidence from the record, the Administrative Procedure Act authorizes the court to remand for further proceedings before the court makes a final decision.

¶ 3 On the merits, the superior court erred by concluding that the department's failure to produce the witness for further cross-examination at the remand hearing required reversal of the department's action. We reverse the superior court and reinstate the department's decision to revoke Hong's license.

FACTS

¶ 4 Hong was licensed to operate two adult family homes known as Heritage House I and II. This appeal concerns her license to operate Heritage House II. The revocation decision was based on seven violations found during an unannounced investigation by the department in July 2003.

¶ 5 There were five residents of Heritage House II. Four were elderly women, one with dementia. The fifth was WH, a 71-year-old man who, in contrast to three of the women, needed relatively little assistance with daily living. Otilia Castro was one of two regular caregivers. Hong herself lived at Heritage House I, not far away.

¶ 6 A key witness at the revocation hearing was Isel Solis. It was Solis who triggered the investigation by calling the department's hotline on July 14, 2003. Solis was Castro's cousin. Without Hong's permission, Castro asked Solis to fill in for her by working at Heritage House II on July 7 and July 14. Solis testified that while she was working on July 14, she had to deal with several problems caused by WH. He hit one of the other residents on the head and became angry when chastised. At lunch, he poked his cane at the legs of the other residents while they were eating, and she later saw him touching the genital area of one of the other residents. Solis testified that she did not know how to contact Hong about WH's behavior, so she called the department's hotline and left a voice message reporting that there was an aggressive male resident who was being abusive.

¶ 7 An investigator arrived at Heritage House II later that day. She talked to Solis and WH in person and spoke to Hong by telephone. The investigator returned to the home two days later and interviewed Hong in person. The investigator's written report detailed seven deficiencies at the home. The primary allegation was that Hong had not formulated a plan to protect the four female residents, despite having received information about WH's abusive behavior. Many of the other violations stemmed from the undisputed fact that Solis was not supposed to be giving care at the home and had not been properly trained or oriented to the home. The investigator found that Solis did not know how to contact Hong in an emergency situation. Also, Castro had poured out the medications for the residents before she left, initialed the medication log, and instructed Solis to dispense the medications at 8 a.m. This violated regulations because Solis was not a person authorized to give medications; she was not aware of what medications she was dispensing; she did not know where the medications were kept; and the person who dispensed the medications was not the person who initialed the log. Another violation *24 was that Solis did not know where to find the individual care plans for each resident.

¶ 8 On July 16, 2003, the department notified Hong of a summary suspension, license revocation, and an order to stop admissions at Heritage House II. The notice referred to the violations as serious deficiencies determined to be an imminent danger to the health, safety or welfare of the residents. The administrative hearing was held to review Hong's appeal from this notice.

¶ 9 At the administrative hearing, there was some evidence that did not reflect particularly well upon the department. After Hong spoke with the investigator on the telephone on July 14, she called Truang Tang, the department's case manager for WH. She wanted to tell him about the allegations and if necessary move WH to another home, which would require Tang's approval. Tang did not answer. Hong called again the next morning and left a specific message that there were problems with WH. Tang did not call back. Hong reached Tang on the morning of July 16 but Tang said he was busy and would have to call her back. He did not call back. The investigating staff talked to Tang and he told them he had no information about any plan for WH. His response formed part of the basis for the department's determination that Hong had not taken any action to protect the female residents from WH. At the hearing, Tang testified that he got a lot of telephone calls and did not believe Hong's call was urgent.

¶ 10 The department did not disclose in discovery the one-page intake form generated by department staff from the voice message Solis left on the hotline on July 14. Hong did not see a copy of the form until after Solis testified. The form identified Heritage House II as the facility and Solis as the complainant. The form stated a contact telephone number for Solis that was nonworking, although except for one digit it was the telephone number for Heritage House I. In the spaces for "alleged victim" and "alleged perpetrator", the form listed one of the female residents and WH respectively, and then stated social security numbers for each of them that were, improbably, in exact numerical sequence. The form stated that the call by Solis had come in at 10:34 a.m.

¶ 11 Hong moved to reopen the record to allow her to question Solis about the form, with the aim of showing inconsistencies between the form and Solis's testimony. For example, Solis testified that she observed WH misbehaving at lunch, whereas the form indicated that she called in the morning. Also, Hong argued that it was so unlikely that the true social security numbers would be in exact sequence that Solis must have made them up when she provided the information. And Hong believed that Solis must have intentionally given a non-working contact telephone number. The administrative law judge denied Hong's motion to reopen the record.

¶ 12 The administrative law judge affirmed the revocation. Hong appealed unsuccessfully to the department's Board of Appeals. She then filed a petition for judicial review. She alleged the department was arbitrary in denying her motion to reopen the record.

¶ 13 The petition for judicial review was heard by the King County Superior Court, the Honorable Brian Gain presiding.

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192 P.3d 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hong-v-state-dept-of-soc-health-serv-washctapp-2008.