STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS

Transcription

1 STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS In the matter of John Allen Fuller, C.N.A., Petitioner v Bureau of Health Professions, Respondent / Docket No Agency No Agency: Case Type: Department of Community Health Appeal PROCEDURAL HISTORY Issued and entered this 23rd day of June 2004 by J. Andre Friedlis Administrative Law Judge DECISION OF THE ADMINISTRATIVE LAW JUDGE On March 18, 2004, a Notice of Hearing was issued scheduling this case for hearing on April 14, This hearing was scheduled based upon Petitioner s January 13, 2004 request for hearing concerning Respondent s December 29, 2003 Notice of Intent to Flag Registry (Notice). Respondent s Notice alleged that Petitioner had abused a nursing home resident. The hearing commenced as scheduled on April 14, Attorney Ryan Kauffman appeared on behalf of Petitioner Fuller. Petitioner John Allen Fuller also attended. Mary Prygoski, an analyst from Respondent s Complaint Division, appeared on behalf of Respondent, Bureau of Health Professions. Petitioner filed a post hearing brief dated May 14,

2 Docket No Page ; Assistant Attorney General Darrin F. Fowler filed a response on behalf of Respondent, also dated May 14, ISSUES AND APPLICABLE LAW The issue in this matter is whether Petitioner abused a nursing home resident requiring Respondent to report Petitioner s abuse to the State Nurse Aide Registry to flag his name. The legal authority for this matter is found at 42 USC 1395 i-3 (g) (1) (C) that provides: as follows: The State shall provide, through the agency responsible for surveys and certification of nursing facilities under this subsection, for a process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility or by another individual used by the facility in providing services to such a resident. The State shall, after providing the individual involved with a written notice of the allegations (including a statement of the availability of a hearing for the individual to rebut the allegations) and the opportunity for a hearing on the record, make a written finding as to the accuracy of the allegations. If the State finds that a nurse aide has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the registry of such finding... (Emphasis supplied) The federal regulation 42 CFR defines the terms abuse and neglect As used in this subpart Abuse means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

3 Page 3 In addition to the broad issue of whether Petitioner abused a nursing home patient, this case presents the issue of collateral estoppel. That is, does a finding after trial by a District Court Judge that Petitioner violated MCL (1), as a matter of law, decide the question of whether Petitioner abused a nursing home patient? This section provides: follows: (1) A licensee, nursing home administrator, or employee of a nursing home shall not physically, mentally, or emotionally abuse, mistreat, or harmfully neglect a patient. MCL (1) declares violation of MCL a misdemeanor as (1) A person who violates a provision of this code for which a penalty is not otherwise provided is guilty of a misdemeanor. FINDINGS OF FACT Petitioner Fuller was employed as a Certified Nurse Aide (C.N.A) at Metron of Cedar Springs starting in January He was discharged in July follows: I adopt paragraphs 6 and 7 from Respondent s December 29, 2003 Notice, as (6) On September 9, 2003, the Department received certified documents stating that on July 7, 2003, Registrant was convicted of Nursing Home Abuse of a Patient, a misdemeanor, in case number RO22452SM, in the 63-1 Judicial District Court in Kent County, Michigan. On August 22, 2003, Registrant was sentenced to pay fines and costs totaling $1,160.00, and placed on probation for one year. A copy of pertinent conviction documents, marked Exhibit A, is attached and incorporated. (7) The aforementioned conviction resulted from Registrant s care of a resident while employed at Metron of Cedar

4 Page 4 Springs, Michigan. On or about April 5, 2001, Registrant transported a 92-year-old resident in a wheel chair at an unsafe speed and without foot pedals for the resident s feet. The resident s feet subsequently hit the floor, causing the resident to fall forward to the floor, with resulting injuries to the resident s left eye, knee and elbow, and fracturing the resident s left hip. Mr. Fuller testified at the administrative hearing that after a bench trial, he was found guilty of violating MCL (1). Mr. Fuller testified at the trial and others testified on his behalf. Respondent Exhibit B is the Judgment of Sentence upon which paragraph 6 from the Notice of Intent is based. CONCLUSIONS OF LAW Because Respondent argued at hearing that the criminal conviction constitutes the willful infliction of injury, with resulting harm, pain or mental anguish, as set forth in 42 CFR, Section (Count I from the Notice of Intent), I asked the parties to brief this issue. In his post hearing brief, Petitioner argues that the District Court action did not litigate the issue of whether Petitioner abused a patient. Petitioner points out that MCL (1), the statute under which Petitioner was charged and found guilty of violating, does not define the terms abuse or neglect. This is in contrast to 42 CFR noted above. Importantly, unlike 42 CFR , this statute does not specifically define the terms abuse or neglect. Consequently, the District Court that convicted Mr. Fuller of violating the statute did not determine that his conduct constituted either abuse or neglect as those terms are defined in the federal regulation. As a result, this Tribunal may not rely on the District Court s determination that Mr. Fuller harmfully neglect[ed] Mr. (sic) Matejovitz to decide whether or not Mr. Fuller has abused a nursing home patient as charged by the Department. Rather, it

5 Page 5 must make its own determination based on the evidence presented. Based on this correct analysis, this Tribunal should find that the Department has failed to prove its claim by a preponderance of the evidence that Mr. Fuller either abused or neglected an nursing home patient. (Page 6 of Petitioner's brief.) Petitioner asserts that in order to find abuse, one must find Petitioner made a willful and conscious decision to abuse a patient. On pages 7 and 8 of Petitioner s brief this point is made as follows: Abuse, as that term is used in the federal regulations at issue, requires a finding that one has willfully made a conscious decision to do an act which the law forbids. Hearns v District of Columbia Dep t of Consumer & Regulatory Affairs, 704 A2d 1181, 1183 (1997) (relying on Screws v United States, 325 US 91, 101; 65 Sct 1031 [1945]). Even the most cursory reading of MCL (1) reveals that a defendant can be convicted under that statute without willfully making a conscious decision to violate the law. Indeed, as explained in greater detail below, conviction under that statute requires no mens rea or scienter at all. Whatever effect Mr. Fuller s conviction has on the present proceedings, it clearly cannot establish that he abused Ms. Matejovitz. Therefore, because this is the only charge presented by the Department, and because the Department has failed to meet its burden of proof in establishing this charge, this Tribunal should find that Mr. Fuller has not committed an act of abuse and decline to flag his name on Michigan s Nurse Aid Registry. Respondent, of course, argues the criminal conviction should carry the day and lead to flagging Petitioner s name on the nurse aide registry. Respondent points to 42 CFR This regulation makes it illegal for a nursing facility to hire Petitioner even if his name is not flagged on the nurse aide registry. The regulation provides in pertinent part: (1) The facility must (ii) Not employ individuals who have been

6 Page 6 (A) (B) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents, or misappropriation of their property.² (footnote omitted) Accordingly, Respondent argues on page three of its brief: In order to know whether there has been such a conviction, facilities rely on the Registry. The only possible benefit to Petitioner in keeping the Registry from being flagged with his conviction would be to aide him in deceiving a facility into violating this regulation. This Tribunal should not be led astray by Petitioner's effort to have the word abuse given a narrower construction under the federal regulations that it was given for the purpose of his conviction under Michigan law.³ Petitioner has been convicted of abusing a nursing home resident. This is an irrefutable fact, and it means a nursing home facility cannot hire him. In order to guard against fraud in this regard, and to protect Michigan s most vulnerable citizens, BHP must be permitted to flag the nurse aide registry with the incident of abuse for which Petitioner was convicted. (footnote omitted.) I find that Respondent has established Petitioner s violation of 42 CFR abuse by presenting a final court decision finding a violation of MCL (1). I conclude that with this conviction, Petitioner is collaterally estopped from relitigating the issue of whether he abused a nursing home resident. Moreover, Respondent s reference to 42 CFR makes it clear that no nursing facility can hire Petitioner even if I were to hold that he did not abuse a patient. The criminal conviction alone has this result. Accordingly, to make it clear to other facilities, it is necessary for Petitioner s name to be flagged.

7 Page 7 I find the allegations contained in the Respondent's Notice to be established. Accordingly, Petitioner's name should be flagged on the Michigan Nurse Aide Registry. DECISION Based upon the above Findings of Fact and Conclusions of Law, Petitioner's name should be flagged on the Michigan Nurse Aide Registry. J. Andre Friedlis Administrative Law Judge