DEPARTMENT OF HEALTH AND SENIOR SERVICES - v. ADELENE CHARLES Respondent-

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4826-05T24826-05T2

DEPARTMENT OF HEALTH AND SENIOR SERVICES,

Petitioner-Respondent,

v.

ADELENE CHARLES,

Respondent-Appellant.

_______________________________________

 

Submitted: May 13, 2009 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Department of Health and Senior Services, Agency Docket No. 04-293-OPC.

Edward A. Berger, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Rachana R. Munshi, Deputy Attorney General, on the brief).

PER CURIAM

Respondent Adelene Charles appeals from a June 20, 2006, final agency decision by the petitioner Department of Health and Senior Services (DHSS) adopting the initial decision by the Office of Administrative Law (OAL) revoking Charles's Certified Nurse Aide (CNA) license for no less than one year. Because Charles was not given notice prior to the hearing before the Administrative Law Judge (ALJ) that she was charged with neglect based on an alleged failure to check on the condition of M.C., we reverse.

Charles was employed by the Atrium at Wayne Subacute and Rehabilitation Center (the Atrium) on March 28, 2004, when she was accused of patient abuse. On March 29, 2004, Robin Magher, the Administrator for the Atrium, notified Charles by letter that she had been named in an alleged abuse and mistreatment of a resident under her direct care and instructed Charles to contact her immediately upon receiving the letter. Magher also prepared an internal disciplinary form that day immediately suspending Charles, who refused to give a statement or sign the disci plinary form. Charles's employment was terminated on March 31, 2004.

On September 13, 2004, DHSS notified Charles that she had been accused of "abuse, neglect and/or misappropriation of property of a nursing home resident." It further advised:

1. If it is determined that you have committed an act of abuse or misappropria tion of property, your name will be placed permanently on the abuse registry.

2. If it is determined that you have committed an act of neglect of a resident, your name will be placed permanently on the abuse registry. However, you would have the right to make a request in writing to this Department to have the finding of neglect removed after one year from the date of the original neglect placement.

In accordance with 42 CFR 483.13(b) Abuse: The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

DHSS then described the allegations as follows:

In bringing this action, the Department of Health and Senior Services (Department) alleges the following:

1. You are seeking certification as a nurse aide or are listed on the New Jersey Nurse Aide Abuse Registry, certificate number NA 868197.

2. As a result of a review of the facility investigation report concerning an incident that occurred at Atrium at Wayne Subacute and Rehabilitation on or about March 28, 2004, this Department has made a determination that mental and physical abuse may have occurred.

DHSS also described Charles's right to request a hearing and notified her of the consequences of failing to do so. On September 18, 2004, Charles requested a hearing.

On September 23, 2004, DHSS notified Charles that an informal conference had been scheduled for November 16, 2004. The notice advised her that a failure to appear at the conference could result in loss of her right to a hearing, revocation of her certificate, entry of her name in the Nurse Aide Abuse Registry, and a lifetime ban on work as a CNA or personal-care assistant.

That informal conference apparently took place because on November 23, 2004, DHSS notified Charles that the matter would be transmitted to the OAL for a full evidentiary hearing. Once again, DHSS notified Charles that a failure to attend could result in waiver of her right to a hearing, the case being marked as abandoned, entry of her name in the Nurse Aide Abuse Registry, revocation of her certificate, and a permanent prohibition from working as a CNA in a licensed health care facility.

On December 30, 2004, the OAL issued a notice of filing, specifying that the nature of the proceeding was: "ABUSE OF A RESIDENT IN A LONG-TERM CARE FACILITY BY A CERTIFIED NURSE AIDE. 42 CFR 488.355; NJAC 8:39-43.17." The contested proceeding was heard thereafter by an ALJ.

The following facts are derived from the reconstructed record before the ALJ. On March 28, 2004, at approximately 7:45 a.m., Dr. Jeffrey Gold, an attending physician at the Atrium, went to M.C.'s room and found her lying in bed with a sheet fully covering her face. M.C. is a quadriplegic with neurological problems, including a seizure disorder, and mental challenges, including possible retardation. Although she is Spanish-speaking, she does understand English. Her breath-activated call device was completely beyond her reach. She was awake, alert, oriented, and fairly calm. She told Dr. Gold that someone covered her face. Dr. Gold, who was upset by the incident, testified that it was inappropriate that M.C.'s face was covered.

After hearing the testimony of Dr. Gold and others, the ALJ found the undisputed facts described above respecting M.C.'s condition and also found that M.C. was the first resident that Charles cleaned, washed and dressed that morning at approximately 5:30 a.m. She also found that Charles did not see M.C. again until she was about to punch out at 8:00 a.m. She found Dr. Gold a highly credible witness and that M.C. lacked the capacity to testify. She briefly described the testimony of Thomas and found the sum and substance of the testimony of the other witnesses was a recapitulation of the testimony of Dr. Gold.

The ALJ than found that what was missing from the testimony from all but one of the accounts was the identification of the person who left M.C. in the circumstances in which Dr. Gold found her. Only Thomas testified that M.C. identified Charles as that person when Charles returned to check on M.C. before she punched out. However, that identification was made to the translator and the statement Menaker prepared for M.C. also had been translated into English by the translator. Because the Spanish-language version was not introduced at the hearing and the translator was not available, and Menaker had no knowledge of Spanish, the accuracy of the translations could not be determined. The ALJ concluded that DHSS had not proven abuse by a preponderance of the evidence "[b]ased on M.C.'s limited range of motion with respect to her head and the hearsay nature of the identification Thomas claims she made of Respondent." However, the ALJ found:

There is testimony by Atrium staff that M.C. had to be checked periodically on account of her condition, for bathroom assistance. Furthermore, staff assigned to her would have had to anticipate M.C.'s needs at that time.

Based on the fact that [Charles] was the primary aide for M.C. on March 28, 2004, as well as [Charles's] own testimony that she dressed M.C. at 5:30 and did not see her again until she, [Charles], was checking out at approximately 8:00 a.m., and considering the immobility of the patient at the time as well as the long period of time during which the primary aide did not even check this resident's condition, given the need to do so regularly, I do FIND [Charles] neglected this resident.

On May 13, 2006, Charles filed exceptions with DHSS. She disputed the finding that she neglected M.C. and argued that the entire case had been tried based on the allegation that she had pulled the sheet over M.C.'s head and moved the call device out of her reach. She argued that DHSS had not contended at the hearing that she had neglected M.C. between 5:30 and 8:00 a.m., as the ALJ found. She asserted that her due-process rights had been violated by this finding because, without notice of such a charge, she had no opportunity to address it at the hearing.

The DHSS's Regulatory Officer in the Office of Program Compliance responded on May 22, 2006, to Charles's exceptions. He urged that in 42 C.F.R. 488.355 (2009), as well as related New Jersey regulations, abuse and neglect are included together throughout the text of the regulation, and that neglect is considered a lesser-included offense to abuse. He further argued that "[b]ecause the sole difference between abuse and neglect is often determined by the intent of the accused, neglect does not need to be noticed separately. In these cases, whether there is a finding of abuse or neglect is determined by the same facts." Further, he stated that he had argued to the ALJ that, if abuse was not substantiated, a finding of neglect should be made based on the evidence that Charles had failed to check on M.C. for the prolonged period that the sheet was covering her head and her call device had been pushed away.

DHSS issued its final agency decision on June 20, 2006, adopting the initial decision of the ALJ; ordered that a finding of neglect be placed next to Charles's name in the Nurse Aide Abuse Registry; and revoked Charles's license for one year. Specifically, it determined that the ALJ "was correct in ruling that the evidence was insufficient to prove abuse, but that the facts of the incident had demonstrated that an act of neglect had taken place." DHSS did not mention the due-process exception taken by Charles to the ALJ initial decision in its final agency decision.

On July 13, 2006, DHSS notified Charles that, pursuant to 42 C.F.R. 483.156(c)(iv)(D) (2009), a finding of neglect would be placed next to her name in the Nurse Aide Abuse Registry. She was instructed to surrender her CNA certificate and wallet card to DHSS and that so long as the finding of neglect remained she could not work as a CNA in a licensed long-term care facility.

This appeal followed. Charles contends that she was denied due process of law and that the final agency action adopting the initial decision of the ALJ was arbitrary, capricious and unreasonable as inconsistent with the facts and issues presented at the contested hearing. DHSS argues that we should dismiss this appeal as moot because the finding of neglect was removed from the Nurse Aide Abuse Registry on July 13, 2007, or determine that the final agency action was proper and did not constitute arbitrary, capricious or unreasonable agency action.

Generally, we dismiss appeals where the issues have become moot. Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993). The rationale behind this principle is the desire to "refrain[] from rendering advisory opinions or exercising [our] jurisdiction in the abstract." DeVesa v. Dorsey, 134 N.J. 420, 428 (1993). However, we may entertain a technically moot matter where the issue is of substantial importance or capable of repetition. Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998).

Here, DHSS urges that this appeal is moot because it removed the finding of neglect from the Nurse Aide Abuse Registry and, thus, there is no effective relief that can be granted, citing Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976). We do not agree. Although Charles's record on the New Jersey Nurse Aide Abuse Registry has had the substantiated finding of neglect expunged, the DHSS final agency decision finding that Charles neglected M.C. could still carry significant collateral consequences. The stigma resulting from a finding of neglect could adversely impact Charles's professional reputation. Cf. In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003) (attorney's appeal not mooted by expiration of license suspension because of collateral consequences on reputation), cert. denied, 540 U.S. 1219, 124 S. Ct. 1509, 158 L. Ed. 2d 154 (2004). Moreover, a potential employer familiar with the registry may well inquire if Charles has ever had a finding of abuse or neglect placed on same, chilling future employment prospects. Such collateral consequences are neither speculative nor remote, Cinque, supra, 261 N.J. Super. at 244, and thus we will address the merits of the appeal.

However, even if the issues are moot, we would nonetheless reach the merits of Charles's claim that she was deprived of the process due her in the administrative proceedings because of the constitutional importance of the issue and the likelihood that it will recur, yet evade review. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003); Clymer v. Summit Bancorp, 171 N.J. 57, 65-66 (2002); Libertarian Party of Cent. N.J. v. Murphy, 384 N.J. Super. 136, 140 (App. Div.), remanded by, 188 N.J. 487 (2006).

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Asst. & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).

DHSS urges that neglect is a lesser-included offense of abuse that need not be noticed separately because "the only difference between these two terms is the mental status or intent of the accused," citing 42 C.F.R. 488.301 (2009). Additionally, it urges that Charles "was given notice of the neglect charge at the hearing when [DHSS] asked the ALJ to consider neglect." As a consequence, DHSS contends that Charles "was given proper notice and opportunity to be heard" because the Regulatory Officer replied to Charles's exceptions by stating that he had urged the ALJ to find neglect based on the "prolonged period that the sheet was covering the resident's head and the resident's call device was moved from her reach."

The federal regulation on which DHSS relies for the proposition that the only difference between abuse and neglect is the level of intent defines "abuse" as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish" and defines "neglect" as the "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." Ibid. Although the level of intent is certainly different, that is not the only difference between the two offenses. However, even if neglect can in some instances qualify as a "lesser-included offense," the argument advanced by DHSS misses the essential predicate of Charles's argument, which is that the conduct supporting the finding of neglect in this case was different from the conduct alleged to constitute abuse.

DHSS notified Charles on September 13, 2004, that she was charged with mental or physical abuse based on the investigation report prepared by the Atrium. The Atrium's investigation concluded that Charles covered M.C.'s head with a sheet and moved her call device out of her reach. Proofs were submitted before the ALJ respecting this charge of abuse. The Regulatory Officer's request that the ALJ find that Charles neglected M.C. does not appear in the reconstructed record, but the tenor of his July 13, 2006, letter strongly suggests that his request was made after the evidence had been presented.

The federal regulation applicable to notice of abuse, neglect, or misappropriation of resident property requires DHSS to notify the individual implicated in the investigation of the nature of the allegations. 42 C.F.R. 488.335(c)(3)(i) (2009). State regulations, too, require DHSS to give the CNA thirty days notice of the factual basis for the charge of abuse, neglect, or misappropriation of resident property and of the right to a hearing before entering a finding on the Nurse Aide Abuse Registry. N.J.A.C. 8:39-43.8. The "essential components" of due process are adequate notice, opportunity to be heard, and the availability of appropriate review. State, Dep't of Cmty. Affairs v. Wertheimer, 177 N.J. Super. 595, 599 (App. Div. 1980) (citing In re Suspension of Heller, 73 N.J. 292, 310 (1977)). "The first prerequisite then of due process is fair notice so that a response can be prepared and the respondent fairly heard." Nicoletta v. N. Jersey Dist. Water Supply Comm. of N.J., 77 N.J. 145, 162 (1978) (citation omitted). The Court continued:

As stated by Judge Goldman in Department of Law & Public Safety, Division of Motor Vehicles v. Miller, 115 N.J. Super. 122, 126 (App. Div. 1971):

Adequate notice and an opportunity to prepare remains the key to proper administrative proceedings. * * * There can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice. It offends elemental concepts of procedural due process to grant enforcement to a finding neither charged in the complaint nor litigated at the hearing.

[Ibid.]

The suggestion of the Regulatory Officer that the ALJ could find neglect based on the evidence presented at the hearing, whether it was made at the beginning of the hearing or at the conclusion or anytime in between, did not give Charles the notice she was due under applicable state and federal regulations governing notice. That lack of notice deprived her of an opportunity to meet the charge of neglect based on her alleged failure to check M.C. every two hours. In fact, the internal disciplinary form prepared by Magher on March 29, 2004, made no mention of any failure to make rounds every two hours.

With respect to Charles's contention that the final agency decision was arbitrary, capricious and unreasonable, the proofs established that Charles attended to M.C. at 5:30 a.m. and was with her for up to twenty minutes. The nurses, like the CNAs, are required to check the patient every two hours and Timothy checked M.C. at 2:00 a.m. As a result, she should have checked M.C. around 6:00 a.m. Additionally, any CNA on the floor was required to respond to a call for assistance from a resident even if the CNA was not assigned to that patient. The record is silent as to whether any other CNA attended to M.C. after Charles did at 5:30 a.m. There was no evidence establishing how long the sheet was over M.C.'s head or how long she had been without her call device. As a result, the ALJ's finding that this condition occurred for a prolonged period of time is without support in the record. Although Hayes testified that the CNAs are required to note their rounds in the resident's chart, that chart was not offered into evidence to establish when Charles attended to M.C. Finally, Charles returned to M.C.'s room to check on her sometime shortly before 8:00 a.m., which was close to two hours after the time she finished cleanup of M.C. We are, thus, not persuaded that the finding of neglect was supported by substantial, credible evidence in the record, considering the proofs as a whole. George Harms Constr., supra, 137 N.J. at 27; Close, supra, 44 N.J. at 599.

Reversed.

 

This letter was not moved into evidence before the ALJ at the hearing on the abuse charge.

This form, too, was not moved into evidence before the ALJ.

This letter, too, was not submitted into evidence before the ALJ.

The tape recordings of the proceedings before the ALJ could not be transcribed due to the poor quality of the tape recording. As a result, the parties reconstructed the record as part of the administrative-appeal process.

Upon respondent's June 25, 2007, request, the finding of neglect was removed from the Nurse Aide Abuse Registry on July 13, 2007.

(continued)

(continued)

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A-4826-05T2

June 18, 2009