PATRICIA VICTOR, CNA, Plaintiff-Appellant, v. NEW MEXICO DEPARTMENT OF HEALTH and ALFREDO VIGIL, M.D., SECRETARY OF THE DEPARTMENT OF HEALTH, Defendants-Appellees.
Docket No. 31,497
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
October 3, 2013
Opinion Number: ___________
Valerie A. Huling, District Judge
Youtz & Valdez, P.C.
Shane Youtz
Stephen Curtice
Albuquerque, NM
for Appellant
N.M. Department of Health
Office of General Counsel
Elizabeth Trickey
Santa Fe, NM
for Appellees
OPINION
SUTIN, Judge.
{1} Appellant Patricia Victor appeals the district court’s order affirming a decision of the secretary of the New Mexico Department of Health (the Department) finding that, in her capacity as a certified nurse aide, Appellant abused residents of a health care facility. The finding led to the permanent placement of Appellant’s name on a nurse aide registry, thereby effectively ending her ability to find employment as a certified nurse aide. Appellant claims that her right to procedural due process was violated. We disagree and affirm the district court’s order.
{2} Before reaching the merits of Appellant’s argument, we consider and reject a number of challenges raised by the Department concerning this Court’s jurisdiction over the appeal.
LEGAL CONTEXT
{3} According to regulations promulgated by the secretary of the Department, all complaints received by the Department for which there is reason to believe that a resident of a health care facility has been abused by a nurse aide1 must be investigated. See
{4} If a nurse aide timely requests a hearing, the secretary of the Department (the secretary) must “appoint an impartial hearing officer to conduct the hearing and issue a report and recommended decision. The hearing officer need not be an attorney.”
{5} If the secretary finds that the nurse aide has abused a resident, the Department must, as a matter of federal and state regulations, report its finding to the nurse aide, the administrator of the facility that employs the nurse aide, and to the nurse aide registry.
{6} Should a party choose to appeal the secretary’s final action, the appeal must be taken pursuant to
{7} Should the district court grant the petition for writ of certiorari, the district court, in its appellate capacity, must issue a written decision, reflecting its order of remand, reversal, or affirmance of the agency’s order.
BACKGROUND
{8} Appellant was terminated by her employer, the Albuquerque Heights Healthcare and Rehabilitation Center (the facility) based on allegations that she abused residents of the facility’s hospice unit. By letter, the Department advised Appellant that it received a complaint alleging that she had violated the rights of a resident by abuse, that the allegation had been investigated, and that it was found to be valid. The letter also notified Appellant that she had a right to a hearing to appeal that finding. Appellant responded in a letter to the Department requesting a hearing.
{9} The Department appointed an attorney as the hearing officer in Appellant’s case, and a hearing was scheduled. Following the hearing, the hearing officer completed a report recommending that Appellant’s name be placed on the nurse aide registry because Appellant had abused four residents of the facility. The secretary, having reviewed the hearing officer’s report and recommendation, found the hearing officer’s recommendation to be appropriate; and the secretary ordered Appellant’s abuse of the residents to be reported to and recorded in the nurse aide registry.
{10} Underlying the secretary’s finding of abuse and subsequent placement of that finding on the nurse aide registry was Appellant’s treatment of four residents of the facility’s hospice unit. In one incident, Appellant continued to feed a resident who was coughing, thereby creating a risk of aspiration. Appellant transferred another resident from bed to a wheelchair “roughly” and then kicked the resident to force the resident’s foot onto the foot rest of the wheelchair. Another resident, the roommate of the resident involving the wheelchair, suffered emotional abuse from having observed the incident; and reported that she had also been treated roughly by Appellant. Finally, another resident was slapped by Appellant.
{11} Appellant filed a petition for writ of certiorari to the district court for review of the secretary’s order. As a basis for reversal of the secretary’s order, Appellant stated without further elaboration, that she was “entitled to have the decision of the [s]ecretary . . . reversed because the [s]ecretary’s decision was arbitrary and capricious, not supported by substantial evidence and not in accordance with the law.” Owing to the inconsistency between
{12} Appellant filed a motion in district court to lift the stay of her petition for a writ of certiorari because this Court had dismissed her concurrently filed petition for certiorari because we did not then have jurisdiction over the appeal. The district court lifted the stay
{13} The Department responded to Appellant’s motion to amend her petition for writ of certiorari, arguing that Appellant’s original petition failed to make a prima facie showing that she was entitled to relief, that
{14} The district court granted leave to Appellant to file her amended petition for a writ of certiorari. And Appellant filed a timely statement of review issues. See
{15} The district court issued a memorandum opinion and order. The court stated that Appellant had raised eleven issues. The court condensed those issues to three: (1) whether the secretary’s decision was supported by substantial evidence; (2) whether the hearing officer abused his discretion in denying Appellant’s requested continuance of the
{16} Appellant filed a notice of appeal, pursuant to
{17} In her response to the Department’s motion to dismiss, Appellant argued, among other things, that her notice of appeal pursuant to
{18} This Court issued an order to show cause why, in light of Mascarenas v. City of Albuquerque, 2012-NMCA-031, 274 P.3d 781, we should not grant the Department’s motion to dismiss in part and deny it in part. We stated that most of the issues raised in Appellant’s docketing statement “invoked the district court’s appellate jurisdiction to review evidentiary matters and to review whether substantial evidence supports the hearing officer’s decision. Some of [Appellant’s] issues below, however, invoked the district court’s original jurisdiction to address [Appellant’s] constitutional challenges to regulations promulgated by the [Department].” We stated that “Mascarenas indicates that when a district court has exercised both its appellate and original jurisdiction, the appellant should pursue an appeal by filing a Rule 12-505 petition to address issues stemming from the exercise of the district court’s appellate jurisdiction, and a direct appeal to address issues stemming from the exercise of the district court’s original jurisdiction.” See Mascarenas, 2012-NMCA-031, ¶¶ 1, 16-24 (explaining that where the plaintiff filed an appeal pursuant to
{19} On appeal, Appellant makes the overarching argument that the regulations applicable to the nurse aide registry do not contain appropriate provisions to protect the due process rights of certified nurse aides. To that end, she makes two sub-arguments. She argues first that the definition of “abuse” is too broad and the regulations lack a “severity assessment,” therefore she was not protected from an erroneous finding of abuse. She argues that this defect is aggravated by the fact that her name can never be removed from the nurse aide registry. Second, she acknowledges that federal law requires permanent placement of a finding of abuse on the nurse aide registry; but she argues that the Department was not bound by federal law to define “abuse” as broadly as it does in Regulation
{20} On appeal, relying on its earlier briefs to this Court for the substance of its arguments, the Department continues to argue that this Court lacks jurisdiction over the appeal. The Department also refutes Appellant’s due process claims and requests that we affirm the district court’s due process ruling.
{21} After reviewing the Department’s jurisdictional arguments, we conclude that we have jurisdiction over the appeal. In regard to the merits of Appellant’s due process argument, we conclude that Appellant fails to establish that a violation of her right to procedural due process occurred. Accordingly, we affirm the district court’s ruling.
Jurisdiction
{22} Whether a court has jurisdiction to hear a matter is a question of law that we review de novo. Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. The Department raises three jurisdictional challenges to our consideration of the merits of Appellant’s appeal. First, the Department argues that the district court considered
1. Appellant’s Due Process Claims Comprise an Appeal as of Right
{23} The Department argues that the district court exercised its appellate and not its original jurisdiction in considering Appellant’s case. The Department rests its argument on the assertions that: (1) because Appellant failed to file a civil complaint setting out her due process claims, separate from her
{24} As an initial matter, we reject the Department’s assertion that the hearing officer in this case was vested with jurisdiction to consider the constitutionality of the regulations at issue. Constitutional challenges that exceed the scope of the hearing officer’s review are subject to the original jurisdiction of the district court. Cf. Schuster v. State Dep’t of Taxation & Revenue, 2012-NMSC-025, ¶¶ 20-21, 283 P.3d 288 (“[A]ny constitutional challenge beyond MVD’s scope of statutory review is brought for the first time in district court under its original jurisdiction.”). An overview of the regulations pertaining to the hearing available to a nurse aide against whom a finding of abuse has been substantiated reveals that the purpose of the hearing is to allow the nurse aide to challenge the substantiated finding of abuse, and thereby attempt to overcome the Department’s intent to report the finding of abuse to the nurse aide registry. See
{25} Moreover, neither the district court’s failure to expressly state that it was exercising its original jurisdiction in regard to the due process claims, nor Appellant’s failure to expressly seek to invoke the court’s original jurisdiction by filing a separate civil complaint barred the court’s exercise of original jurisdiction. By raising a due-process challenge in her petition for writ of certiorari and her statement of review issues, Appellant sufficiently invoked the district court’s original jurisdiction. See Los Chavez Cmty. Ass’n v. Valencia Cnty., 2012-NMCA-044, ¶ 11, 277 P.3d 475 (explaining that the substance of the pleading controls the question whether the district court’s original jurisdiction was invoked and holding, therefore, that the appellant’s inclusion of a due process claim in her appeal to the district court invoked the court’s original jurisdiction and rendered her appeal therefrom one of right). Further, by ruling upon Appellant’s due process claims, the district court implicitly exhibited its exercise of original jurisdiction; this, notwithstanding the court’s references, in its written opinion, to
2. Rule 12-505 is Inapplicable to Appellant’s Due Process Claims
{26} The Department relies on Smith, 2007-NMSC-055, for the proposition that Appellant was required to follow the
{27} The Department’s final jurisdictional challenge is premised on the notion that the district court lacked jurisdiction over Appellant’s appeal because (1) Appellant’s original petition for a writ of certiorari failed to make a prima facie showing of entitlement to relief, and (2) the court did not have discretionary authority to permit Appellant to amend the petition to comply with
{28} As set forth in the background section of this Opinion, during the pendency of this case below, Regulation
Procedural Due Process
{29} “Claims involving the denial of procedural due process are questions of law, which we review de novo.” Cordova v. LeMaster, 2004-NMSC-026, ¶ 10, 136 N.M. 217, 96 P.3d 778. Appellant’s due process argument focuses on the definition of “abuse” in Regulation
any act or failure to act performed intentionally, knowingly[,] or recklessly that causes or is likely to cause harm to a resident, including:
(1) [P]hysical contact that harms or is likely to harm a resident of a health
facility; (2) [I]nappropriate use of a physical restraint, isolation, or medication that harms or is likely to harm a resident;
(3) [I]nappropriate use of a physical or chemical restraint, medication, or isolation as punishment or in conflict with a physician‘s order;
(4) [M]edically inappropriate conduct that causes or is likely to cause physical harm to a resident;
(5) [M]edically inappropriate conduct that causes or is likely to cause great psychological harm to a resident;
(6) [A]n unlawful act, a threat[,] or menacing conduct directed toward a resident that results and might reasonably be expected to result in fear or emotional or mental distress to a resident.
{30} Appellant also cites regulations promulgated by the Department which are applicable to “New Mexico providers of health care and services and employees of these providers who are not licensed health care professionals or certified nurse aides.”
(1) the abuse results in, or is a contributing factor to, death;
(2) the abuse results in the infliction of a significant, identifiable physical injury that reasonably requires or results in medical or behavioral intervention or treatment;
(3) the abuse results in any injury for which criminal charges are brought against the employee resulting in a plea or conviction;
(4) the abuse results in the infliction of excruciating pain or pain that endures over a significant time period;
(5) the abuse causes significant mental anguish as evidenced by the victim‘s descriptions, or significant behavioral changes;
(6) the abuse is sexual abuse; or
(7) the abuse is verbal abuse that causes significant mental anguish, including psychological or emotional damage, and which is evidenced by significant behavioral changes or physical symptoms.
{31} Appellant argues that because the definition of “abuse” applicable to nurse aides includes conduct that is “likely to harm a resident[,]” she was not adequately protected from erroneous findings of abuse and that this is exemplified by the fact, according to Appellant, that she did not “cause[] harm to any resident.” She argues further that because the nurse aide regulations, unlike the employee regulations, do not contain a mechanism for assessing the “severity” or the impact of the abuse on the resident, the regulations created risk of erroneous deprivation of her property interest in continuing employment as a nurse aide. See Mills v. State Bd. of Psychologist Exam’rs, 1997-NMSC-028, ¶ 15, 123 N.M. 421, 941 P.2d 502 (recognizing that “the right to practice a profession or vocation is a property right.” (internal quotation marks and citation omitted)). Appellant contends that in order to comport with due process, the Department’s regulations applicable to nurse aides, like the employee regulations, must include provisions requiring a finding of actual harm, an assessment of the impact of the substantiated abuse on the resident, and an assessment of the nurse aide for aggravating factors3.
{32} “In general, the right to due process in administrative proceedings contemplates only notice of the opposing party’s claims and a reasonable opportunity to meet them.” Archuleta v. Santa Fe Police Dep’t ex. rel City of Santa Fe, 2005-NMSC-006, ¶ 32, 137 N.M. 161, 108 P.3d 1019 (internal quotation marks and citation omitted). “The importance of the individual’s and administrative body’s interests, together with the risk of an erroneous deprivation of such private interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, dictates what additional process, if any, is due in an administrative proceeding.” Id. (alteration, internal quotation marks, and citation omitted).
{33} Although Appellant claims that she was deprived of “her right to be heard in a meaningful manner[,]” Appellant does not demonstrate, with argument or record support, that such deprivation occurred. See
{34} In regard to the due process balancing test, Appellant asserts and the Department does not dispute that the interests of the Department and Appellant were equally balanced. See Archuleta, 2005-NMSC-006, ¶ 32. Thus, we turn to the question whether the applicable regulations created a risk of an erroneous deprivation in this case and to consideration of the probable value, if any, of additional procedural safeguards. Id.
{35} Although Appellant argues that the Department could have and should have defined “abuse” more narrowly, required a severity assessment, and premised a finding of “abuse” on the existence of actual harm, these arguments do not demonstrate that the administrative proceedings in this case “created a risk of erroneous deprivation” of Appellant’s right to pursue her vocation. Appellant does not deny that she did the actions that constituted abuse in this case. Rather, the crux of her argument in regard to the risk of erroneous deprivation is that because the definition of “abuse” includes conduct that “is likely to cause harm” she was found to have abused residents even where the residents were, in her view, unharmed. The Department, in its own words, “vehemently disputes [Appellant’s] assertion that ‘[n]one of the incidents that [Appellant] was accused of caused harm to any resident.’ ” Appellant’s argument is unpersuasive for two reasons.
{36} First, the Legislature vested the Department and the secretary with authority to promulgate regulations applicable to nurse aides. See
{37} Second, Appellant was protected from the possibility of an erroneous deprivation of her right to practice her vocation by the regulations themselves. The definition of “abuse” in Regulation
{38} Finally, even were a severity assessment to be considered an additional or substitute safeguard in a due process analysis, Appellant does not show that a severity assessment would have had any value in this case. See Archuleta, 2005-NMSC-006, ¶ 32. The district court found that “even under the more lenient standard” set forth in the employee regulations, Appellant’s “actions qualified as abuse for at least one of the residents” in that Appellant’s actions “caused ‘significant mental anguish as evidenced by the victim’s descriptions, or significant behavior changes.’
{39} In sum, Appellant has failed to demonstrate a procedural due process violation in this case. Her argument provides no basis for reversal.
CONCLUSION
{40} We affirm.
{41} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
M. MONICA ZAMORA, Judge
J. MILES HANISEE, Judge