Missouri Department of Social Services, Division of Aging v. Leland Health Care, LLC

103 S.W.3d 273, 2003 Mo. App. LEXIS 229, 2003 WL 433486
CourtMissouri Court of Appeals
DecidedFebruary 25, 2003
DocketNo. ED 81481
StatusPublished
Cited by1 cases

This text of 103 S.W.3d 273 (Missouri Department of Social Services, Division of Aging v. Leland Health Care, LLC) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Missouri Department of Social Services, Division of Aging v. Leland Health Care, LLC, 103 S.W.3d 273, 2003 Mo. App. LEXIS 229, 2003 WL 433486 (Mo. Ct. App. 2003).

Opinion

GLENN A. NORTON, Judge.

The Department of Social Services, Division of Aging1 appeals from a summary judgment entered in favor of Leland Health Care arising from an action for civil monetary penalties against Leland. We affirm in part and reverse in part.

I. BACKGROUND

We review the record in the light most favorable to the non-movant, the Division, affording it all reasonable inferences from the record. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Leland operated a skilled nursing facility licensed under the Omnibus Nursing Home Act, Chapter 198 RSMo 2000.2 In 2001, paramedics responded to two separate calls from Leland. Leland’s air-conditioning was apparently malfunctioning. A paramedic recorded the air temperature on the third floor at 98 degrees. One third-floor resident was transported to the hospital where she later died of hyperther-mia. Another resident, also on the third-floor, died of hyperthermia before the paramedics arrived.

The Division conducted a month-long complaint investigation at Leland. The investigation focused mainly on the temperature inside the facility. The Division issued a Notice of Noncompliance with a Statement of Deficiencies, citing five violations of state regulations — three class I violations and two class II violations. The Division conducted a re-inspection under section 198.026 two months later and found that the deficiencies had been corrected.

Under section 198.067.2, the Division brought an action for civil penalties against Leland. In its petition the Division sought the assessment of penalties under two separate provisions of the Act. The Division sought $123,000 in penalties for each class I violation3 under Section 198.067.3(1), which allows for a penalty of up to $1,000 for each day the violation exists. The Division also sought a $10,000 penalty under section 198.067.10, which allows for a penalty of $100 per bed, up to $10,000, for class I violations that result in “serious physical injury” to a resident.

Leland filed a motion for summary judgment. First, Leland argued that the Division could not seek penalties under section [275]*275198.067.3 because there was not a violation. According to Leland, a violation is a deficiency that has not been corrected upon re-inspection. Because the deficiencies were found to be corrected upon re-inspection, Leland asserted that there was no violation. Next, Leland argued that it was entitled to summary judgment because the Division failed to plead the number of beds licensed to Leland. According to Leland, the number of beds is a required element to state a cause of action for penalties under section 198.067.10.

The trial court granted Leland’s motion for summary judgment, and the Division appeals.

II. DISCUSSION

The propriety of summary judgment is a question of law, and therefore, our review is de novo. ITT, 854 S.W.2d at 876. The criteria for determining the propriety of summary judgment on appeal are no different than that used at the trial level. Id. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant’s response. Id. at 376.

Leland, as the defending party, may establish a right to judgment by showing (1) facts that negate any one of the elements of the Division’s claims, (2) that the Division cannot produce evidence sufficient to allow the trier of fact to find the existence of any one of their elements, or (3) “that there is no genuine dispute as to the existence of each of the facts necessary to support [Leland’s] properly-pleaded affirmative defense.” Id. at 381 (emphasis in original). Once Leland has met this burden, the Division must show by reference to the record that “one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed.” Id. A “genuine issue” exists where the record contains competent materials that demonstrate “two plausible, but contradictory, accounts of the essential facts.” Id. at 382.

A. The Statute’s definition of “violation” applies to all of Section 198.067.3.

In its first point on appeal, the Division asserts that the trial court erred in granting summary judgment in favor of Leland regarding the assessment of penalties under section 198.067.3, because the definition of “violation” following Section 198.067.3(5) does not apply to section 198.067.3(1) — the provision under which the Division is seeking civil penalties. Section 198.067.3 states:

The operator of any facility which has been cited with a violation of sections 198.003 to 198.096 or the regulations established pursuant thereto, or of subsection (b), (c), or (d) of Section 1396r of Title 42 of the United States Code or the regulations established pursuant thereto, is liable to the state for civil penalties of up to ten thousand dollars for each day that the violations existed or continue to exist. Violations shall be presumed to continue to exist from the time they are found until the time the division of aging finds them to have been corrected. The amount of the penalty shall be determined as follows:
(1) For each violation of a class I standard, not less than one hundred fifty dollars nor more than one thousand dollars;
(2) For each violation of a class II standard, not less than fifty dollars nor more than five hundred dollars;
(3) For each violation of a class III standard, not less than fifteen dollars nor more than one hundred fifty dollars;
[276]*276(4) For each violation of a federal standard which does not also constitute a violation of a state law or regulation, not less than two hundred fifty dollars nor more than five hundred dollars;
(5) For each specific class I violation by the same operator which has been cited within the past twenty-four months and for each specific class II or III violation by the same operator which has been cited within the past twelve months, double the amount last imposed. As used in this subdivision the term, “ violation” shall mean a breach of a specific state or federal standard or statute which remains uncorrected and not in accord with the accepted plan of correction at the time of the re[-]inspection conducted pursuant to subsection 3 of section 198.026 or the regulations established pursuant to Title 42 of the United States Code. A judgment rendered against the operator of a facility pursuant to this subsection shall bear interest as provided in subsection 1 of section 408.040, RSMo.

Section 198.067.3 (italics emphasis added).

The Division contends that the definition of “violation” is meant to apply only to section 198.067.3(5), thereby eliminating double civil penalties for repeat offenders except when the violation is not corrected before re-inspection.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. Missouri Board of Nursing Administrators
130 S.W.3d 619 (Missouri Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
103 S.W.3d 273, 2003 Mo. App. LEXIS 229, 2003 WL 433486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-department-of-social-services-division-of-aging-v-leland-health-moctapp-2003.