Editor’s note: This piece from the SCOV Law Blog is by Andrew Delaney.
Whittington v. Office of Professional Regulation, 2013 VT 93
This case is about nursing home administration — it’s a bit of a “do’s and don’ts” with an emphasis on the don’ts.
Respondent was an administrator at a nursing home for four years. It seems as though she was not a lot of fun to work with.
The State “alleged that respondent committed a host of specified acts that amounted to unprofessional conduct.” After 10 days of hearings before an administrative law officer (ALO), the ALO issued a lengthy written opinion, finding the State had met its burden of proving the following instances of unprofessional conduct: (1) interfering with medical diagnoses and treatment on at least three separate occasions — or conduct and practice outside the scope of her ability and training; (2) kicking the ombudsman out of the facility and threatening to call the police; (3) requiring patients to dress against their wishes; (4) creating a hostile work environment; (5) interrupting nurses regularly during medication passes; and (6) showing deficiencies in two annual surveys (which are basically inspections).
The ALO found that, in some way, all the above transgressions were unprofessional conduct. If you want to take a look at the applicable statutes, one’s here and the other one’s here. “The ALO explicitly did not find respondent mentally ill or psychologically unfit.” The ALO also noted that to the extent other charges were made — remember there were a “host” of them — the State didn’t meet its burden of proof.
The State requested a one-year suspension of respondent’s license. The ALO went beyond that due in large part to respondent’s refusal to “accept responsibility for her actions,” and imposed a five-year suspension. Additionally, before respondent would be allowed to reactivate her license, she’d have to pay a $5,000 fine, complete a leadership course, complete a personnel management course, complete an effective communication course, and hire a consultant to keep an eye on her for at least two years.
Respondent appealed to the Superior Court, which affirmed, and the next stop was the SCOV.
The standard of review in this type of intermediate-level-included appeal is most easily described as do-over review. In other words, the SCOV reviews the ALO’s decision independent of the Superior Court’s findings and conclusions.
Findings of fact stand if supported by substantial evidence; there’s deference to the fact-finder when the evidence conflicts. The ALO’s conclusions of law are reviewed de novo ‘cause the ALO isn’t a nursing home administration specialist or anything like that.
Because the primary purpose of professional licensure is to protect patients and the public, workplace conflicts amongst staff generally are not a basis for a finding of unprofessional conduct. The SCOV says: “Simply put, being a bad manager — even a temperamental, unpredictable, harsh, and demanding one — might not necessarily constitute unprofessional conduct for the purposes of state disciplinary action against a licensed nursing home administrator.”
The SCOV first looks at the three specific instances of interference with medical diagnosis and treatment. The first incident involved withdrawal of life-sustaining medication, which patient asked for after consultation with doctor and his family. After respondent expressed significant concern, doctor met again with patient with respondent present. Patient again refused the life-sustaining medication. After that, apparently, respondent stopped pushing the issue. Regarding this instance, the SCOV reasons that respondent’s conduct was reasonable, and fell within the realm of patient advocacy. Accordingly, the SCOV concludes that this particular instance did not constitute unprofessional conduct.
The second incident involved “respondent telling a psychiatric nurse practitioner to diagnose a violent and agitated resident with bipolar disorder so that the resident would be moved to a psychiatric facility.” The SCOV reasons that these findings were supported by the evidence and directing a specific diagnosis was unprofessional.
The third incident involved respondent telling a patient who’d been prescribed a physical therapy assessment by a doctor that he did not need the assessment and should not have it. This too was supported by substantial evidence, though respondent denied it, and the SCOV won’t second-guess credibility determinations. The SCOV reasons that this exceeded respondent’s training and qualification and supports a finding of unprofessional conduct.
The ALO made a background finding that respondent had an inflated view of her role at the nursing home, and misrepresented her credentials to others, claiming that she was “‘six credits away from having [her] nursing degree,’ despite never having enrolled in nursing school.” Despite respondent’s credibility-of-the-evidence challenge, the SCOV concludes that this finding was squarely within the fact-finder’s wheelhouse.
The rest of the charges fall within the swath of “failing to practice competently.” First, there was an incident involving the ombudsman (an ombudsman is an independent public advocate designated to investigate complaints of maladministration and the like). Respondent physically removed the ombudsman from the home more than once, and at least once, threatened to call the police if the ombudsman didn’t leave. The SCOV agrees with the ALO that respondent’s conduct violated state and federal law and was unprofessional.
Next there was an ALO finding that “respondent forced a dying patient on ‘comfort care’ to change clothing against the patient’s wishes and had a resident placed in a chair when the resident wished to remain in bed.” The SCOV notes that there is evidence in the record to support the findings, that respondent’s conduct violated applicable statutes, and that the ALO’s finding of unprofessional conduct on this basis was not error.
The ALO also found that respondent acted unprofessionally by creating a hostile work environment. Because the primary purpose of professional licensure is to protect patients and the public, workplace conflicts amongst staff generally are not a basis for a finding of unprofessional conduct. The SCOV says: “Simply put, being a bad manager — even a temperamental, unpredictable, harsh, and demanding one — might not necessarily constitute unprofessional conduct for the purposes of state disciplinary action against a licensed nursing home administrator.”
In this case however, the SCOV concludes that respondent’s actions — “going off” on other employees in public areas and yelling at an employee in a resident’s area — were sufficient to show unprofessional conduct. In other words, respondent’s regular behavior went beyond internal employment disputes to the point where it affected or could have affected the residents’ well-being.
Respondent interfered with medication passes, and this too supported findings of unprofessional conduct.
Finally, there’s the finding that the survey deficiencies constituted unprofessional conduct. The reasoning for this finding was that as respondent was responsible for the home’s administration, she was thus responsible for deficiencies, even if respondent was not necessarily personally responsible.
The SCOV notes that while survey deficiencies could in theory lead to a finding of unprofessional conduct, there must also be a connection between the deficiencies and respondent’s conduct. Because that necessary connection is absent here — there were no specific findings by the ALO that the deficiencies were directly connected to respondent — the SCOV concludes that this finding must be reversed.
The last order of business is the sanction. If you recall, the State asked for a year, and the ALO gave five. The SCOV sends it back on the basis that it reversed two of the professional misconduct findings, but does note the following: (1) failure to accept responsibility is an important consideration in fashioning a sanction; (2) a five-times-that-asked-for suspension raises red flags; and (3) a five-year suspension is an outlier when compared with similar cases.
So that’s that. You’ve got the good, the bad, and the ugly. Affirmed in part, reversed in part, and remanded.
