Marluz Tanggote v. State Department of Social and Health Services

• Court: Court of Appeals of Washington
• Decided: May 20, 2025
• Docket: 59677-6
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

May 20, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II MARLUZ TANGGOTE, No. 59677-6-II

Appellant,

v.

STATE OF WASHINGTON, DEPARTMENT UNPUBLISHED OPINION OF SOCIAL AND HEALTH SERVICES, ADULT PROTECTIVE SERVICES DIVISION,

Respondent,

CRUSER, C.J.—The Department of Social and Health Services (DSHS) added Marluz

Tanggote, a licensed practical nurse, to the Vulnerable Adult Abuse (VAA) Registry after

Tanggote failed to challenge DSHS’s initial finding of neglect against her. Tanggote petitioned

Adult Protective Services (APS) to remove her name from the VAA Registry pursuant to WAC

388-103-0180(2). APS declined to remove her name from the registry because she was not

employed as a nursing assistant as required to petition for removal under WAC 388-103-0210. It

did not address whether APS had the authority to remove her name from the VAA Registry under

WAC 388-103-0180. The superior court affirmed DSHS’s decision not to remove Tanggote’s

name from the registry. Tanggote appeals the superior court decision, arguing, among other things,

that DSHS’s decision not to remove her from the registry (1) was arbitrary and capricious, (2) was

outside of DSHS’s statutory authority, and (3) violated Tanggote’s substantive due process rights. No. 59677-6-II

We conclude that DSHS’s decision to deny Tanggote’s petition was arbitrary and

capricious because it was unreasoned as to its section 0180 removal authority. We decline to

consider Tanggote’s arguments that DSHS’s denial of her removal petition was outside of its

statutory authority in light of our decision to remand on the ground that denial was arbitrary and

capricious. Because we can decide this case on nonconstitutional grounds, we also decline to

consider Tanggote’s substantive due process argument.

FACTS

I. THE VULNERABLE ADULT ABUSE REGISTRY

APS, a division of DSHS, may investigate allegations of neglect by a person or entity with

a duty of care to a vulnerable adult. WAC 388-103-0010; see RCW 74.34.020. When an

investigation results in an initial substantiated finding of neglect, APS will notify the alleged

perpetrator. WAC 388-103-0040. The alleged perpetrator is permitted to challenge the initial

substantiated finding at an administrative hearing. WAC 388-103-0090. However, an initial

substantiated finding becomes final when DSHS gives the alleged perpetrator notice of the initial

substantiated finding and “the alleged perpetrator does not request an administrative hearing.”

WAC 388-103-0160. When APS makes a final substantiated finding, identifying information

about the perpetrator is placed on the VAA Registry. WAC 388-103-0170. Individuals on the VAA

Registry may not work or volunteer anywhere they might have unsupervised contact with

vulnerable adults or children.

The final substantiated finding is permanent unless “(a) the department determines the final

substantiated finding was made in error; (b) the final substantiated finding is reversed or otherwise

overturned upon judicial review; (c) the department is notified that a person with a final

2 No. 59677-6-II

substantiated finding is deceased.” WAC 388-103-0180(2). If this occurs, the final substantiated

finding may be reversed and the person’s information removed from the registry. WAC 388-103-

0180. Alternatively, a perpetrator can petition for removal if they are a nursing assistant who meets

certain requirements. WAC 388-103-0210(2)-(3).

II. BACKGROUND

Marluz Tanggote was a licensed practical nurse (LPN) at a nursing home. APS initiated an

investigation into possible neglect by Tanggote after an incident when a resident who required

one-on-one supervision fell while unsupervised. In April 2020, APS notified Tanggote that it had

made an initial finding that she, more likely than not, neglected a vulnerable adult. The notice

informed Tanggote that she had a right to challenge the initial finding by requesting an

administrative hearing within 30 days. The notice also stated that the initial finding would become

final and her name would be placed on a registry if she did not timely request an administrative

hearing.

Tanggote did not request an administrative hearing based upon an assurance by her

employer that it was unnecessary because the case had already been resolved. In January 2021, the

nursing home terminated Tanggote’s employment after it discovered that she had been placed on

the VAA Registry during a routine background check. Tanggote requested an administrative

hearing in February 2021. The Office of Administrative Hearings (OAH) dismissed Tanggote’s

request for a hearing, on DSHS’s motion, because OAH received the request for the hearing after

the 30-day deadline. OAH’s order notified Tanggote of her right to appeal the order. Tanggote did

not pursue further administrative remedies or judicial review of this action.

3 No. 59677-6-II

II. PETITION FOR REMOVAL

In April 2023, Tanggote sent APS a petition to remove her name from the VAA Registry

pursuant to WAC 388-103-0180 on the grounds that the finding against her was “made in error.”

Clerk’s Papers at 12. In the alternative, Tanggote argued that she should be removed from the list

under WAC 388-103-0210. DSHS responded to Tanggote’s petition in a letter stating that because

she was not employed as a nursing assistant as required by WAC 388-103-0210, she was “not

eligible to petition for name removal, therefore, will permanently remain on the VAA registry.”

Id. at 7. The letter did not address WAC 388-103-0180.

Tanggote petitioned the superior court for judicial review. The superior court granted

review and affirmed DSHS’s decision denying Tanggote’s removal petition. Tanggote appeals the

superior court’s order denying her petition.

DISCUSSION

I. STANDARDS OF REVIEW

The validity of an agency action is determined in accordance with the standards of review

provided by the Administrative Procedure Act (APA), ch. 34.05 RCW. RCW 35.05.570(1)(b). An

agency’s decision to deny a petition to be removed from the VAA Registry is subject to judicial

review as any other agency action under RCW 34.05.570(4). Romero v. Dep’t of Soc. and Health

Servs., 30 Wn. App. 2d 323, 335, 544 P.3d 1083 (2024). In reviewing an administrative action, the

court of appeals applies the APA standards directly to the agency’s administrative record. Id. “The

burden of demonstrating the invalidity of agency action is on the party asserting invalidity.” RCW

35.05.570(1)(a). To grant relief, we must determine that the person seeking relief has been

substantially prejudiced by the action complained of. RCW 35.05.570(1)(d).

4 No. 59677-6-II

We may grant relief to a person aggrieved by the performance of an agency action other

than an order in an adjudicative proceeding if we determine that the action is unconstitutional,

outside of the agency’s authority, arbitrary or capricious, or taken by persons who are not lawfully

entitled to take such actions. RCW 34.05.570(4)(c)(i)-(iv).

I. ARBITRARY AND CAPRICIOUS AGENCY ACTION

Tanggote argues that DSHS’s decision to deny her petition for removal was arbitrary and

capricious because (1) DSHS did not address the Medicaid Act’s prohibition on listing an “other

individual nursing home provider[ ]” on an abuse or neglect registry based upon circumstances

outside of the provider’s individual control, 42 U.S.C. § 1369r(g)(1)(C), and (2) DSHS did not

address its authority to remove Tanggote from the registry under WAC 388-103-0180 (section

0180). Br. of Appellant at 55 (emphasis omitted). DSHS contends that denial of Tanggote’s

petition for removal under section 0180 was not arbitrary and capricious because the final

substantiated finding against Tanggote was not in error. And, DSHS argues, this court does not

have jurisdiction to review DSHS’s finding of neglect.

We decline to consider Tanggote’s argument regarding the Medicaid Act because the issue

was not preserved for appeal and because we are barred from considering this argument to the

extent that it asks us to review the finding of neglect against Tanggote. But, we conclude that

DSHS’s decision to deny Tanggote’s removal petition was arbitrary and capricious because its

decision was unreasoned in that it did not address the basis for the petition, its section 0180 removal

authority.

5 No. 59677-6-II

A. Legal Principles

An arbitrary or capricious action is one that is “ ‘willful and unreasoning and taken without

regard to the attending facts or circumstances.’ ” Port of Seattle v. Pollution Control Hr'gs Bd.,

151 Wn.2d 568, 589, 90 P.3d 659 (2004) (internal quotation marks omitted) (quoting Wash. Indep.

Tel. Ass'n v. Wash. Utils. Transp. Comm'n, 149 Wn.2d 17, 26, 65 P.3d 319 (2003)). “ ‘[W]here

there is room for two opinions, an action taken after due consideration is not arbitrary and

capricious even though a reviewing court may believe it to be erroneous.’ ” Rios v. Dep’t of Lab.

& Indus., 145 Wn.2d 483, 501, 39 P.3d 961 (2002) (alteration ours) (quoting Hillis v. Dep’t of

Ecology, 131 Wn.2d 373, 383, 932 P.2d 139 (1997)).

“In reviewing matters within agency discretion, the court shall limit its function to assuring

that the agency has exercised its discretion in accordance with law, and shall not itself undertake

to exercise the discretion that the legislature has placed in the agency.” RCW 34.05.574. The party

alleging an agency’s action was arbitrary and capricious carries a heavy burden, and the scope of

review is very narrow. Romero, 30 Wn. App. 2d at 335, 350.

B. Analysis

First, Tanggote argues that DSHS’s decision to deny her removal petition was arbitrary

and capricious because DSHS did not consider that under the Medicaid Act, an individual nursing

home provider cannot be placed on a neglect registry based upon circumstances outside of their

individual control. But Tanggote did not raise this argument in her removal petition. We decline

to consider this argument raised for the first time on appeal. See RCW 34.05.554(1). And to the

extent that this argument requires us to review DSHS’s decision to place Tanggote on the registry,

6 No. 59677-6-II

this argument is outside the scope of our review because Tangotte did not timely challenge DSHS’s

initial finding of neglect. See RCW 34.05.534, RCW 34.05.542.

Next, Tanggote argues that it was arbitrary and capricious for DSHS not to consider its

authority to remove her name from the VAA Registry under section 0180. DSHS does not directly

address this argument. Rather, DSHS contends that it was not arbitrary and capricious for DSHS

to decline to consider Tanggote’s arguments concerning the factual support for the neglect finding

because APS does not reweigh factual evidence under section 0180. And DSHS contends that its

denial of Tanggote’s petition was not arbitrary and capricious because Tanggote did not request

an administrative hearing and, therefore, was properly placed on the registry pursuant to WAC

388-103-0160. In essence, DSHS asks us to conclude that denial of Tanggote’s petition was not

arbitrary and capricious because, had DSHS considered its discretion to remove Tanggote from

the registry under section 0180, it would not have done so. However, the APA prohibits this court

from exercising the discretion the legislature has placed in an agency. RCW 34.05.574(1). Thus,

our review of the agency’s exercise of its discretion is confined only to those reasons actually

given by the agency for its denial of Tanggote’s removal petition. See id.

Here, DSHS’s letter denying Tanggote’s petition does not address section 0180. Instead,

DSHS’s letter cites section 0210, stating that because Tanggote was an LPN rather than a nurse

aid, she was not eligible for removal. The letter does not explain why or whether section 0180(2)(a)

applies to individuals that are not nursing assistants, and if so what test it employs to determine

whether a final substantiated finding was made in error. While we must defer to an agency action

taken after due consideration, here, the agency did not consider or address its section 0180 removal

7 No. 59677-6-II

authority at all. This failure renders the decision to deny Tanggote’s petition entirely unreasoned.

Therefore, the decision was arbitrary and capricious.

II. STATUTORY AUTHORITY

Tanggote argues that DSHS acted outside of its statutory authority when it put Tanggote

on the VAA Registry because (1) Tanggote is exempt from the Long-Term Care Worker Act, ch.

49.95 RCW, as a nursing home employee and (2) the Medicaid Act requires a state health care

licensing authority to take disciplinary action before restricting employment of an “other

individual nursing home provider.” Br. of Appellant at 37 (italics omitted).

Because we remand on the basis that DSHS’s decision to deny Tanggote’s removal petition

was arbitrary and capricious, we decline to address whether that decision was outside of DSHS’s

statutory authority.

III. SUBSTANTIVE DUE PROCESS

Tanggote argues that DSHS’s refusal to consider its section 0180 removal authority

violated substantive due process because DSHS’s interest in protecting vulnerable adults is not

meaningfully advanced by keeping her on the registry where the finding of neglect was made in

error. DSHS responds that, based on Romero, 30 Wn. App. 2d at 346, DSHS’s registry removal

regulations do not violate substantive due process because they are rationally related to the State’s

interests in protecting vulnerable adults and maintaining the maximum available Medicaid

funding.

On appeal of an agency decision, a court avoids reaching any constitutional issues where

the court is able to decide on nonconstitutional grounds. Brunson v. Pierce Cnty., 149 Wn. App.

8 No. 59677-6-II

855, 862, 205 P.3d 963 (2009). Because we reverse on the ground that DSHS’s denial of

Tanggote’s petition was arbitrary and capricious, we do not address this constitutional claim.

ATTORNEY FEES

Tanggote requests an award of attorney fees under the Equal Access to Justice Act (EAJA),

RCW 4.84.350. Under the EAJA, “a court shall award a qualified party that prevails in a judicial

review of an agency action fees and other expenses, including reasonable attorneys’ fees, unless

the court finds that the agency action was substantially justified or that circumstances make an

award unjust.” RCW 4.84.350(1).

A “[q]ualified party” is “an individual whose net worth did not exceed one million dollars

at the time the initial petition for judicial review was filed.” RCW 4.84.340(5)(a). The parties do

not contest that Tanggote is a qualified party.

A qualified party prevails “if the qualified party obtained relief on a significant issue that

achieves some benefit that the qualified party sought.” RCW 4.84.350. Tanggote prevails because

we conclude that DSHS’s denial of her petition for review was arbitrary and capricious and remand

to the agency.

A “substantially justified” action is one that would satisfy a reasonable person and that had

a reasonable basis in law and in fact. Silverstreak, Inc. v. Dep't of Lab. & Indus., 159 Wn.2d 868,

892, 154 P.3d 891 (2007) (plurality opinion). “An agency action that is arbitrary and capricious is

not substantially justified.” Raven v. Dep't of Soc. & Health Servs., 177 Wn.2d 804, 832, 306 P.3d

920 (2013). DSHS argues that denial of Tanggote’s petition was substantially justified because

Tanggote’s placement on the registry was not in error and it was not arbitrary and capricious for

DSHS to decline to reconsider the factual circumstances of the finding. Because we conclude that

9 No. 59677-6-II

DSHS’s denial of Tangotte’s petition was arbitrary and capricious, it was not substantially

justified.

We grant Tanggote’s request for attorney fees under the EAJA because DSHS’s denial of

her petition was arbitrary and capricious and Tanggote is a qualified party.

CONCLUSION

We conclude that DSHS’s decision to deny Tanggote’s petition was arbitrary and

capricious because it was unreasoned as to its section 0180 removal authority. Because we reverse

on the basis that DSHS’s denial of Tanggote’s petition was arbitrary and capricious, we decline to

decide whether the denial was outside of DSHS’s statutory authority. We also decline to consider

Tanggote’s substantive due process argument because we can decide this case on nonconstitutional

grounds. We reverse the DSHS decision denying Tanggote’s removal petition and remand to

DSHS to consider if Tanggote should be removed from the VAA Registry pursuant to WAC 388-

103-0180. We grant Tanggote’s request for attorney fees under the EAJA because Tanggote is a

qualified party and DSHS’s denial of her petition was not substantially justified.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

10 No. 59677-6-II

CRUSER, C.J. We concur:

LEE, J.

VELJACIC, J.