58 Conn. App. 642 | Conn. App. Ct. | 2000
Lead Opinion
Opinion
In this administrative appeal involving alleged patient abuse in a nursing care facility, the plaintiff, Sandra Salmon, appeals from the judgment of the trial court sustaining in part her appeal from the deci
The following facts found by the department’s hearing officer are necessary to the resolution of this appeal. In August, 1993, the plaintiff was employed as a registered nurse’s aide
The department notified the plaintiff by letter (dismissal letter) dated May 9,1994, that the charges against her had been dismissed for insufficient evidence. On May 16,1994, Mary C. Crowley, a Shelton Lakes administrator, wrote a letter to Donna Buntaine Brewer, chief
On August 16,1994, the department served the plaintiff with notice of the hearing and the statement of the charges, which the plaintiff, through her attorney, answered on September 4, 1994. A hearing before a department hearing officer was held on December 16, 1994. At the hearing, Tschauder testified, “I was all naked there, and she’s wiping me and she said, ‘That’s pussy.’ She kept wiping me, wiping me, saying, ‘Pussy, pussy, pussy,’ all the time I’m—away from it all. I couldn’t.” Tschauder testified that she was not afraid of the plaintiff after that incident, but that the plaintiff had frightened her that night.
In her defense, the plaintiff denied ever physically or verbally abusing Tschauder. The plaintiff testified that on the night before Tschauder made the accusation, the plaintiff had a dispute over an unrelated bath incident with coworker Diane Thorpe, the nurse’s aide who reported the Tschauder allegation to the head nurse. The plaintiff further testified that Thorpe allegedly told her that night that she would “get” the plaintiff.
On January 20, 1995, the hearing officer issued a proposed final decision in which he determined that
On February 15, 1995, the commissioner of public health and addiction services (commissioner) adopted the proposed decision as the final decision in the case. In that decision, the commissioner found that the plaintiff had abused the patient through intimidation, and by using vulgar and inappropriate language. The commissioner, however, sent a letter to the plaintiffs attorney notifying him that the February 15, 1995 final decision had been sent in error because the department had not been notified that the plaintiff had timely requested an opportunity to file exceptions to the proposed final decision of January 20, 1995, and to present oral argument prior to the February 15, 1995 final decision. After both parties filed briefs and oral argument was heard on March 24, 1995, another final decision was issued on April 25, 1995. That decision adopted and incorporated the January 20, 1995 proposed final decision in which the healing officer determined that patient abuse had occurred solely on the basis of the use of vulgar and inappropriate language. Furthermore, the commissioner’s decision stated that “a finding of resident abuse [shall] be listed on the Connecticut Nurse Aide Registry [registry], and that this final decision [shall] be filed in the registry.”
The plaintiff thereafter appealed from the department’s decision to the Superior Court pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., claiming that the department (1) lacked jurisdiction to hear the complaint, (2) violated her due process rights,
I
The plaintiff first claims that the court improperly concluded that the department had jurisdiction to proceed against her on the alleged violations of federal law.
“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise
“This concept, however, is not limited to courts. Administrative agencies [such as the department] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power. . . .
“[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996). “We . . . note that, because [a] determination regarding . . . subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).
The plaintiff first claims that the department attempted to grant itself jurisdiction to prosecute her for alleged violations of federal law since the statement of charges
The statement of charges that the department issued against the plaintiff expressly stated that the department was acting pursuant to General Statutes §§ “19a-9, 19a-14, and 42 U.S.C. § 1395Í-3 (g) (1) (C) (Sup. V 1993).” The provisions of General Statutes (Rev. to 1993) § 19a-14 (c), as amended by Public Acts 93-121, § l,
In addition, the plaintiff relies on Castro v. Viera, 207 Conn. 420, 541 A.2d 1216 (1988), and Stern v. Medical Examining Board, 208 Conn. 492, 545 A.2d 1080 (1988), for the proposition that the legislature did not grant the department authority to prosecute violations of federal law. Although those cases analyzed whether an administrative agency lacked subject matter jurisdiction, both are factually distinguishable. In Castro, our Supreme Court held that the existence of an employee-employer relationship is a jurisdictional fact that must be shown before the workers’ compensation commission can proceed with a claim for workers’ compensation benefits pursuant to General Statutes § 31-297. Castro v. Viera, supra, 427-35. Likewise, in Stem, our Supreme Court stated, “In the administrative context, a proper claim for relief serves the equally vital function of establishing the jurisdictional authority of the tribunal. . . . Just recently, we held that the existence of an employee-employer relationship is a jurisdictional fact that must be shown in order to proceed with a claim for workers’
Unlike the situations in Castro and Stern, there is no missing jurisdictional fact in this case that would subvert the department’s jurisdiction. There is no question that the plaintiff was a registered nurse’s aide subject to the authority of the department at the time the statement of charges and notice of hearing were issued. Section 20-102cc (a) clearly gave the department jurisdiction in the present matter. The plaintiff mischaracterizes the statement of charges to indicate that the department was acting under federal law. We agree
Finally, we disagree with the plaintiff that although the department theoretically could have relied on § 20-102cc (a), it committed itself to seeking enforcement only of federal law and is now, therefore, precluded from asserting § 20-102cc (a) to supply jurisdiction. As stated previously, because the department incorporated by reference § 20-102cc (a) in its original statement of charges, we conclude that the department was acting strictly within its statutory authority, within constitutional limitations and in a lawful manner.
II
The plaintiff next claims that the department’s failure to promulgate regulations defining abuse by nurse’s aides resulted in ad hoc decision making that violated her state and federal constitutional rights to due process. Furthermore, the plaintiff argues that the department’s reliance on three of its unpublished decisions to find that verbal abuse constituted “resident abuse” was invalid rule making. Essentially, the plaintiff contends that (1) her procedural due process rights were violated and (2) that the term “resident abuse” in § 20-102cc (a) is too vague to give notice of what type of conduct constitutes abuse. We disagree.
A
“The fourteenth amendment to the United States constitution prohibits any state from depriving any person of ‘life, liberty, or property, without due process of law.’ Article one, section eight of our state constitution contains the same prohibition and is given the same effect as the fourteenth amendment to the federal constitution. Miller v. Heffernan, 173 Conn. 506, 516, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S.
“Administrative due process requires, in its essence, that a party be given notice of the case against him and an opportunity to be heard by a fair and impartial body. The procedure must be tailored, in light of the decision to be made, to the circumstances of those who are to be heard to insure that the hearing is, in fact, meaningful. Mathews v. Eldridge, 424 U.S. 319, 349, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Pagano v. Board of Education, 4 Conn. App. 1, 6-7, 492 A.2d 197 (1985).” Altholtz v. Dental Commission, 4 Conn. App. 307, 313, 493 A.2d 917 (1985). “The ‘root requirement’ of the due process clause is that the state actor afford individuals notice and an opportunity for a hearing before depriving them of their property interests.” Connecticut Education Assn., Inc. v. Tirozzi, 210 Conn. 286, 298, 554 A.2d 1065 (1989), citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
The record discloses that the board scrupulously adhered to the requirements of the statute, including notice and a fall hearing. Accordingly, the court properly concluded that the procedure used in this case protected the plaintiffs constitutional due process rights.
The plaintiff argues that the term “resident abuse” as it appears in § 20-102cc (a) fails to inform her of the type of conduct that could result in the commissioner entering a finding in the nurse aide registry. The crux of the plaintiffs argument is that the department’s failure to adopt regulations defining and interpreting resident abuse, accompanied by its reliance on several unpublished decisions, resulted in a violation of her due process rights because she could not know that her alleged actions constituted resident abuse within the meaning of § 20-102cc (a).
“The terms of a statute which is penal in nature; see Brazo v. Real Estate Commission, 177 Conn. 515, 526, 418 A.2d 883 (1979); ‘must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’ Amsel v. Brooks, 141 Conn. 288, 297, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S. Ct. 125, 99 L. Ed. 693 (1954). In applying this test, we look at the statute’s applicability to the particular facts at issue. State v. Smith, 183 Conn. 17, 19, 438 A.2d 1165 (1981). Generally, if a practical or sensible effect may be given to such a statute, it will be sustained. Amsel v. Brooks, supra [297].” Altholtz v. Dental Commission, supra, 4 Conn. App. 314. “A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity.” (Internal quotation marks omitted.) Sweetman v. State
“Because perfect precision is neither possible nor required . . . the [vagueness] doctrine does not mandate the invalidation of all imprecisely drafted statutes. . . . While some ambiguous statutes are the result of poor draftsmanship, it is apparent that in many instances the uncertainty is merely attributable to a desire not to nullify the purpose of the legislation by the use of specific terms which would afford loopholes through which many could escape.” (Citations omitted; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, supra, 249 Conn. 322.
Our Supreme Court has noted that “[c]ivil statutes must be definite in their meaning and application, but may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes. . . . Due process requires that a statute afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” (Citations omitted; internal quotation marks omitted.) Keogh v. Bridgeport, 187 Conn. 53, 60, 444 A.2d 225 (1982).
In the present case, the language of § 20-102cc (a) is sufficiently explicit to inform registered nurse’s aides what conduct on their part will render them subject to its penalties. Public Acts 1993, No. 93-121, § 4, which went into effect on June 14, 1993, and subsequently was codified as § 20-102cc (a), provides in relevant part
“Terms associated with the trade or business with which a given statute is concerned should be accorded the meaning which they would convey to an informed person in that trade or business. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 357, 422 A.2d 268 (1979). We presume that members of [the department of public health] are competent to decide on the basis of such terms whether certain conduct is in derogation of professional standards. See Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949).” Altholtz v. Dental Commission, supra, 4 Conn. App. 314. It is our view that what constitutes “resident abuse” and what findings should be placed on the registry to support such abuse are to be determined “by those standards which are commonly accepted by those practicing the same profession in the same territory.” (Internal quotation marks omitted.) Leib v. Board of Examiners for Nursing, 177 Conn. 78, 88-89, 411 A.2d 42 (1979), quoting Cherry v. Board of Regents, 289 N.Y. 148, 158, 44 N.E.2d 405 (1942). “These standards are part of the ethics of the profession, and every member of the profession should be regarded as an expert with regard to the determination of their meaning. Leib v. Board of Examiners for Nursing, supra, 89.” Altholtz v. Dental Commission, supra, 315. The plaintiff has
To decide whether the plaintiff was the victim of arbitrary and discriminatory enforcement, we must turn to the legislative history of §§ 20-102cc (a) and 20-102ee.
“Our analysis of the core meaning, or lack thereof, of the phrase [resident abuse] is guided, therefore, by well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Packer v. Board of Education, 246 Conn. 89, 115, 717 A.2d 117 (1998).
The legislative history in the present case lends support to our conclusion that the department, not the legislature, should determine and apply the professional standards in the nursing aide profession in determining if a registered nurse’s aide committed an infraction.
Because we conclude that the legislature vested the department with the authority to determine cases on a case-by-case basis, we conclude that the plaintiff was not the victim of arbitrary and discriminatory enforcement. For this reason, we disagree with the plaintiffs
Ill
The plaintiff next claims that the court improperly concluded that the department relied on credible testimony.
“We begin our analysis by noting that our review of an agency’s factual determination is constrained by the [UAPA]. Specifically, General Statutes § 4-183 (j) (5) mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record .... We have interpreted the standard of review set forth in the act as limiting our review
The plaintiff has failed to point to anything in the record from which we can conclude that Tschauder’s
In addition, the plaintiff claims that the court improperly applied the substantial evidence standard of review in upholding the department’s decision. In addressing the plaintiffs claim that the record lacked substantial evidence to support the department’s finding that Tschauder was a credible witness, the court concluded that there was nothing in the record to show that the hearing officer’s assessment of her reliability as a witness was clearly erroneous. The court was therefore correct in applying the substantial evidence standard of review to the plaintiffs claim.
rv
In her next claim, the plaintiff contends that the court improperly interpreted § 20-102cc (a) as not requiring an element of intent. We decline to review this claim.
“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at
Our review of the record discloses that the plaintiff failed to raise this issue before the trial court. The court’s memorandum of decision is devoid of any reference to this claim. Although the plaintiff argued to the trial court that resident abuse “has to involve an element of specific harm or injury,” she did not specifically address the issue of whether § 20-102cc (a) requires the element of intent. We decline, therefore, to review this claim.
V
The plaintiff next claims that the court abused its discretion in denying her motion to present additional evidence pursuant to § 4-183 (h).
Before ordering that additional evidence be taken pursuant to § 4-183 (h), a court must (1) determine that the additional evidence is material and (2) that there is good reason for the failure to present the evidence in the original proceeding. In the present case, the plaintiff sought the court’s permission to present evidence that Tschauder testified falsely, that the testimony of the witnesses from Shelton Lakes was unreliable, and evidence that Tschauder’s medical and mental condition made her testimony unreliable. In her motion to present additional evidence, the plaintiff contended that she had failed to present the evidence at the hearing before the department because it was newly discovered and because of ineffective assistance of counsel.
VI
Both the plaintiff and the department claim, for different reasons, that the court improperly remanded the case to the department. The plaintiff argues that the court improperly remanded the case to the department to state its finding whether, on the existing record, the vulgar and inappropriate language used by the plaintiff had some adverse impact on or harmed the victim.
“The standard of review of an agency decision is well established. Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . . Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642-43, 708 A.2d 202 (1998).” (Internal quotation marks omitted.) Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998). Because our courts have not yet had occasion to construe the language of § 20-102cc (a), our standard of review is plenary.
A
The plaintiff’s argument that the use of vulgar and inappropriate language could not have an adverse impact on the victim because the department rejected a finding of intimidation has no merit. The plaintiff
B
On its cross appeal, the department argues that the court improperly remanded the case on the issue of whether the victim suffered some “physical, mental or emotional” adverse impact. In essence, the department argues that this type of “subjective test” is improper. In addition, the department contends that there is substantial evidence in the record to support the department’s finding of resident abuse. We disagree.
One of the main goals of our legislature in enacting Public Acts 93-121 was to protect the “frail elderly who are receiving services in nursing homes where abusive aides are engaging in some type of inappropriate behavior or misconduct.” 36 H.R. Proc., Pt. 9, 1993 Sess., p. 3039, remarks of Representative Joseph D. Courtney. As stated in part II B of this opinion, it was the intent of the legislature that the department should make case-by-case determinations on the issue of whether a nurse’s aide has abused a resident patient. It is the opinion of the court that this type of a case-by-case determination should be conducted with the personal and individual sensitivities of the particular patient kept
As we have explained, we are not presented with such a situation in this case. Because we believe that in most situations, including the present one, a subjective test would be most effective in determining whether an abused resident suffered some type of “adverse
The judgment is affirmed.
In this opinion O’CONNELL, C. J., concurred.
On July 1, 1995, the department of public health and addiction services became known as the department of public health. Public Acts 1995, No. 95-257, §§ 12, 21, 58; Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 3 n.3, 698 A.2d 795 (1997).
Although the court disagreed with several of the plaintiffs claims, it nevertheless sustained her appeal and remanded the case to the department for further fact-finding. Notwithstanding that the remand requires further findings of fact, the court’s judgment is a final judgment under General Statutes § 4-183 Q) of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., which provides in relevant part that “[f]or purposes of this section, a remand is a final judgment.”
Public Acts 1993, No. 93-121, § 4, which went into effect on June 14, 1993, provides: “The department of health services shall receive, investigate, and prosecute complaints against individuals who are providing or have provided services as a nurse’s aide in a chronic and convalescent nursing home or rest home with nursing supervision. The grounds for complaint shall include resident abuse, resident neglect, misappropriation of resident property, and fraud or deceit in obtaining or attempting to obtain a registration as a nurse’s aide. The commissioner shall render a finding on such complaint, after a hearing conducted pursuant to chapter 54 of the general statutes. The commissioner shall have the authority to render a finding and enter such finding on the registry against an individual who is providing or has provided services as a nurse’s aide in a chronic and convalescent nursing home or rest home with musing supervision, without regard to whether such individual is on the registry or has obtained registration as a nurse’s aide from the department of health services.”
Section 4 of Public Act 93-121 subsequently was codified as General Statutes § 20-102cc (a). References in this opinion to § 20-102cc (a) are to § 4 of Public Act 93-121, which was in effect at the time of the alleged abuse.
Public Acts 1993, No. 93-121, § 2, which went into effect on June 14, 1993, provides in relevant part: “As used in this act ... (2) ‘nurse’s aide’ means an individual providing nursing or nursing-related services to residents in a chronic and convalescent nursing home or rest home with nursing supervision, but does not include an individual who is a health professional otherwise licensed or certified by the department of health services, or who volunteers to provide such services without monetary compensation; (3) ‘registration means a document issued by the department of health services to a nurse’s aide which certifies that such aide has satisfied the training and competency evaluation requirements prescribed by the commissioner and has been found qualified for employment in a chronic and convalescent nursing home or rest home with nursing supervision; and (4) ‘registered nurse’s aide’ means an individual who has been issued a registration as defined in this section.”
Section 2 of Public Act 93-121 subsequently was codified as General Statutes § 20-102aa. References in this opinion to § 20-102aa are to § 2 of Public Act 93-121, which was in effect at the time of the alleged abuse.
In addition, the plaintiff testified that Thorpe received a written warning resulting from the bath incident.
On appeal to the trial court, the plaintiff also argued that the dismissal letter of May 9, 1994, was a final decision that could not be “reopened” because the department failed to follow the procedures of General Statutes §§ 4-182 (c), 20-102cc (a) and 4-181a (b). The plaintiff contended that the matter was a “contested case” and, therefore, the department’s procedural errors deprived it of jurisdiction. The court, however, concluded that since the case had not yet reached the hearing stage and the department still was in the investigatory phase of the case when it sent the dismissal letter, the matter had not risen to the level of a contested case. On appeal to this court, the plaintiff contends that the trial court improperly dismissed her argument. We find no merit to this claim.
The statement of charges included the following: “Pursuant to the provisions of General Statutes of Connecticut, § 19a-9, 19a-14, and 42 U.S.C. § 1395Í-3 (g) (1) (C) (Sup. V 1993), the Department of Public Health and Addiction Services brings the following charges against” the plaintiff.
General Statutes (Rev. to 1993) § 19a-14 (c), as amended by Public Acts 93-121, § 1, provides in relevant part: “No board shall exist for the following professions which are licensed or otherwise regulated by the department of health services . . . (12) Registered nurse’s aide .... The department shall assume all powers and duties normally vested with a board in administering regulatory jurisdiction over said professions. The uniform provisions of this chapter and chapters 368v, 369 to 381, inclusive, 383 to 388, inclusive, 393a, 395, 398 and 399, including but not limited to standards for entry and renewal; grounds for professional discipline; receiving and processing complaints; and disciplinary sanctions, shall apply, except as otherwise provided by law, to the professions listed in this subsection.”
Public Acts 1993, No. 93-121, § 7, which went into effect on June 14, 1993, provides: “Nothing in this act shall authorize any person to engage in any activity for which a license is required pursuant to chapter 378 of the general statutes.”
Subsection 7 of Public Acts 93-121 subsequently was codified as General Statutes § 20-102ff. References in this opinion to § 20-102ff are to subsection 7 of Public Act 93-121, which was in effect at the time of the alleged abuse.
Section 1395Í-3 (g) (1) (C) of title 42 of the United States Code provides: “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
In particular in Stem, our Supreme Court noted that “[t]he critical jurisdictional fact in the present case was the licensure status of the plaintiff at the commencement of the proceedings. The authority of the [medical examining] board is contingent upon a showing that a respondent is a ‘physician’ subject to its disciplinary power. General Statutes § 20-13c. According to § 20-13a (5), a ‘physician’ is any ‘person licensed pursuant to [chapter 370].’ In its statement of charges, the department [of health services] did not specify any intention to pursue its options under § 19a-17 for a censure, letter of reprimand or civil penalty. Nor did the department include in its prayer for relief a general request for any administrative action that, in the board’s discretion, might be appropriate in this case. Having committed itself to seeking only a license revocation, the department disabled itself from invoking other sanctions theoretically authorized by § 19a-17 as a basis for board jurisdiction. In short, we conclude that the narrowly drawn prayer for relief rendered the case subject to dismissal for lack of jurisdiction.” Stern v. Medical Examining Board, supra, 208 Conn. 502.
The plaintiff claims that the department was entitled to adopt regulations pursuant to Public Acts 1993, No. 93-121, § 6, which went into effect on June 14, 1993, and provides: “The commissioner of health services shall adopt regulations, in accordance with the provisions of chapter 54 of the general statutes, concerning the regulation of nurse’s aides.”
Subsection 6 of Public Acts 93-121 subsequently was codified as General Statutes § 20-102ee. References in this opinion to § 20-102ee are to subsection 6 of Public Act 93-121, which was in effect at the time of the alleged abuse.
See footnote 12.
Among others, Stanley K. Peck, the director of the division of medical quality assurance in the department of health services, testified regarding Public Acts 1993, No. 93-121. In an exchange between Representative Lenny T. Winkler and Peck, Winkler questioned Peck on why it was not mandatory for the department to promulgate regulations.
“[Stanley K. Peck]: Well, we didn’t make it shall because we didn’t—we don’t anticipate anything specific at this point in time that we really need to address in regulations, but by providing the authority to do it down the road, you know, we would—in the event, for example, federal mandates may change, then we’d have the authority. We wouldn’t have to come back to the legislature, but right now there isn’t anything that we are aware of above and beyond that we need to put into the law in order to make it work. So we’ve just left it open-ended for the future.
“[Representative Winkler]: But yet if somebody is supposed to adhere to a certain set of rules, shouldn’t they be spelled out so they know what they are—?
“[Peck]: Well, the rules—the standard that people are supposed to adhere to is spelled out in the federal law and reiterated here in the state law, and that is that in terms of this statute, we can take action for abuse, neglect, theft of patient property or presentation of fraudulent credentials in the course of getting on the registry.
“Those things are consistent with what the grounds are that are set forth in the federal law and we’re not going any further than that, and what constitutes abuse or neglect in any given situation is really a matter that’s decided on a case-by-case basis and given definition by the hearing officer who is charged with hearing the case and adjudicating it.’’ (Emphasis added.) Conn. Joint Standing Committee Hearings, Public Health, Pt. 5,1993 Sess., pp. 1710-11.
The plaintiff also contends that the hearing officer should not have considered the victim’s testimony without first requiring medical evidence of her competency and that the hearing officer’s failure to do so was an abuse of discretion. We find no merit to this claim.
General Statutes § 4-183 (h) provides: “If, before the date set for hearing on the merits of an appeal, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.”
The plaintiff alternatively argues that the court improperly remanded the case to the department on the existing record. We disagree. Almost seven years have passed since the incident occurred. Because both the plaintiff and the department already have had an opportunity at the previous hearing to present evidence and call witnesses, it is unlikely that any additional relevant evidence could be produced.
The dissent argues that an “objective test would better serve all parties in this and other such cases.” As we have already acknowledged, an objective test, in some cases, would be more effective. In the present case and in most situations, however, a subjective test is best suited to determine whether a patient has been the victim of resident abuse. Our legislature enacted legislation designed to protect the frail elderly in nursing homes. With that in mind, we cannot ignore the fact that a subjective test is superior to an objective test in ascertaining whether a competent resident suffered some type of harm or adverse impact because the subjective test focuses directly on the victim. Justice would not be served if we ignored the legislative intent of § 20-102cc by moving the focus of our analysis away from the victim and establishing a test that is predicated on the assumption that most residents in nursing homes are not competent.
The dissent quotes Kentucky Board of Nursing v. Ward, 890 S.W.2d 641, 644 (Ky. App. 1994), for the proposition that a nursing home is a place “where the vast majority of patients are infirm due to advance age.” We disagree that such a generalization can be the basis for crafting a rule of law. It is true that at some point in time, most of us will experience the effects of the aging process. Those of us who turn to nursing homes to alleviate the burden of this process, however, are not always incompetent. In this very case, the plaintiff gave competent testimony at the hearing regarding the night in question and how she was affected by the plaintiff’s conduct. Applying an objective test to the present facts not only diminishes the focus on the specific harm the victim testified she felt, but also creates the insurmountable task of having others, i.e. reasonable people, try to evaluate something only the victim could have felt, self-degradation.
Dissenting Opinion
dissenting. I respectfully disagree with the majority’s conclusion on the issue concerning the remand.
In its memorandum of decision, the trial court determined that an element of whether resident abuse occurred is an explicit finding as to “how or if such language affected the patient.” The court stated that its “interpretation of resident abuse under [General Statutes § 20-102cc (a)]
The majority identifies the key issue here as whether a subjective test or an objective test is appropriate to determine whether resident abuse has caused adverse impact on a particular resident. The majority agrees with the trial court’s determination that a subjective test is appropriate for this purpose and that a remand is necessary so that the department can engage in further fact-finding on the basis of the existing record on the issue of adverse impact.
The department recites numerous reasons why an objective test is preferable to a subjective test. I believe those reasons are well founded in experience and common wisdom. A subjective test would mean that comatose or unconscious residents, or patients with Alzheimer’s disease or other diseases causing loss of cognitive functioning would be unable to express subjective responses to claimed abuse. If a victim had diminished capacity to hear or comprehend particular conduct, no abuse could be established because no harm in the subjective sense could be established. The department argues that “an objective test is required in identifying abusive conduct regardless of the resident’s ability to perceive because of the patently deleterious impact such conduct would have on other residents and staff. In other words, unchecked abusive conduct directed at residents who cannot perceive it nevertheless would inevitably result in the creation of a ‘hostile environment’ within any given nursing facility.” Finally, an objective test eliminates the difficulties of proof when the victims have mental deficits or have died before the hearing process is completed. On the other hand, as the Kentucky Court of Appeals pointed out in a similar case, “Many times, the aging process reduces otherwise active, alert, and oriented patients to varying degrees or states of confusion or dementia. It is no secret that many people experience a reversion to childlike behavior in their later years. This is a condition commonly witnessed in a nursing home setting where the vast majority of patients are infirm due to advanced
For these reasons, an objective test for adverse impact would provide greater fairness and consistency for all parties involved in the process, residents and nurse’s aides alike. Accordingly, I would adopt the standard of an objective test that is consistent with and in furtherance of the purpose of § 20-102cc (a), that is, whether an alert and rational person in the resident’s position, taking into account all the circumstances existing, would have experienced physical harm, pain or mental anguish as a result of the specific conduct of the nurse’s aide.
In this case, the parties should have an opportunity to present evidence and argument concerning whether any adverse impact was produced by the conduct of the plaintiff on the basis of the application of an objective test. The department hearing officer should be directed to give full and reasoned consideration to all material facts and issues in determining whether any adverse impact could reasonably be determined to result from the plaintiffs conduct, which consisted of the use on one occasion of vulgar and inappropriate language, under all the circumstances surrounding the
Accordingly, I respectfully dissent from the majority’s conclusion as to the remand to the trial court. I would order the trial court to remand this case to the department for further proceedings consistent with this opinion.
The plaintiff raises numerous troubling issues in her appeal. In particular, the issue of intent or wilfulness, discussed in part IV of the majority opinion, would deserve consideration had it been properly preserved in the trial court proceedings. See Hearns v. District of Columbia Dept. of Consumer & Regulatory Affairs, 704 A.2d 1181, 1182-83 (D.C. App. 1997) (discussing petitioner’s claim that government failed to establish she either wilfully or intentionally abused resident).
Furthermore, although I agree with the majority that the language of Public Acts 1993, No. 93-121, § 4, which went into effect on June 14, 1993, and subsequently was codified as General Statutes § 20-102cc (a), was adequate to inform the plaintiff of the type of conduct that could result in the commissioner of public health making a finding of resident abuse, the plaintiffs argument does not go unheard. The Connecticut legislature gave the commissioner the authority pursuant to Public Acts 1993, No. 93-121, § 6, subsequently codified as General Statutes § 20-102ee, to adopt regulations concerning the regulation of nurse’s aides. Other states have specifically adopted measures identifying the behavior that constitutes resident abuse. See, e.g., Gogebic Medical Care Facility v. AFSCME Local 992, AFL-CIO, 209 Mich. App. 693, 695, 531 N.W.2d 728, appeal denied, 450 Mich. 951, 549 N.W.2d 560 (1995). Because the issue of what constitutes resident abuse is a difficult, one, I believe that the commissioner should consider adopting regulations to give nurse’s aides, such as the plaintiff, more precise notice of the type of conduct that is inappropriate.
The department of public health and addiction services is now known as the department of public health. See footnote 2 of the majority opinion.
Public Acts 1993, No. 93-121, § 4, which went into effect on June 14, 1993, subsequently was codified as General Statutes § 20-102cc (a). See footnote 3 of the majority opinion.