The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC; ss. DOCKET NO. AP-(1-48
Duhi- KEN- 4 [5 [3002
VICKI D. SOUTHER,
Petitioner
V. DECISION AND ORDER
KEVIN W. CONCANNON,
COMMISSIONER, DONALD L. GARSRECHT
DEPARTMENT OF WLIEP ty
HUMAN SERVICES,
Respondent May 10 2002
This matter is before the court upon petitioner’s petition for review in .
accordance with MLR. Civ. P. 80C and 5 M.R.S.A. § 1101 et seq. The petitioner is seeking
review of a June 4, 2001 final decision by the Commissioner of the Department of
Human Services adopting the findings of fact and recommendations of his hearing
officer that “the Department was correct when it decided to annotate the Registry of
Certified Nursing Assistants to show that the State Survey Agency substantiated an
allegation that Vicki Souther abused a resident of Parkview Nursing and Rehabilitation
on August 19, 2000.” The petitioner is a CNA who had been employed at Parkview
Nursing and Rehabilitation Services for 12 months prior to her termination on August
29, 2000. As such, she was subject to the Maine Registry of Certified Nursing Assistants
under rules governing the functioning of the Maine Registry of Certified Nursing
Assistants. Under those rules, among other things, the Registry must include a notation
of any specific documented findings by the Department of Human Services of abuse,
neglect or misappropriation of property of a resident, client or patient by a CNA
(section A.2.B). Record, Tab D, p. 4.
On August 21, 2000, the Division of Licensing and Certification, Bureau of
Medical Services, which maintains the Registry, received a complaint alleging that the
petitioner had abused a resident on August 19, 2000. The allegation was that the
petitioner had punched a resident on the left arm leaving a bruise. After an
investigation by the Health Services Consultant for the Division, the Division notified
the petitioner that her listing on the Registry would be annotated to reflect the abuse.
The petitioner requested an administrative hearing and the Commissioner issued an
Order of Reference, referring the matter to the Office of Administrative Hearings. The
hearing officer conducted hearings on three different dates on the specific issue:
Should the Maine Registry of Certified Nursing Assistants be annotated to
show that the State Survey Agency substantiated an allegation that Vicki
Souther abused a resident of Parkview Nursing and Rehabilitation
Services on August 19, 2000?
The hearing officer issued a decision recommending that the action proposed by the
Division, the State Survey Agency, be affirmed. He further specifically recommended
to the Commissioner that the Maine Registry of Certified Nursing Assistants be
annotated to show that the State Survey Agency substantiated an allegation that the
petitioner abused a resident of Parkview on August 19, 2000. ‘The Hearing Officer
issued a 10-page Fair Hearing Recommendation reciting in detail the case background
and issue, the parties appearing, the items introduced into evidence, his findings of fact,
his recommended decision, and his reasons for the recommendation.
The Office of Administrative Hearings received the petitioner’s letter of
exception of 10 pages, wherein petitioner’s attorney responded to the recommended
decision on behalf of the petitioner. The Commission issued a final decision, adopting
the findings of fact and accepting the recommendation of the hearing officer that the
Department was correct when it decided to annotate the Registry. The petitioner
timely filed this petition for review. In her petition, she denies all allegations of abuse.
Generally, petitioner argues that the Department failed to meet its burden or
proof in demonstrating that the petitioner committed abuse. She argues that the
Commissioner could not have sustained the findings of fact by the hearing officer
because it did not have the benefit of the transcripts of the testimony taken by the
hearing officer. Further, the Commissioner could not have reached the specific finding
that the petitioner punched a patient “in the left upper arm causing a significant bruise,”
because it is contrary to the Hearing Officer’s finding of a blow to the “forearm.” Since
she asserts that there is disputed evidence as to the size, shape, and location of the
bruise, the Hearing Officer’s findings in that regard are not supported by the evidence.
Petitioner also claims that the Commissioner committed an error of law by
failing to properly comply with the Department's own regulations concerning CNA’s.
Regulation B.1 of the DHS rules defines abuse as:
‘The willful, reckless or negligent infliction of injury, unreasonable
confinement, intimidation or cruel punishment with resulting physical
harm or pain or mental anguish; sexual abuse or exploitation; or the
willful deprivation of essential needs. A Certified Nursing Assistant may
commit abuse by willfully, recklessly or negligently inflicting injury by
responding to the actions of a resident, if the Certified Nursing Assistant’s
response was excessive or unwarranted under the circumstances..
Petitioner argues that the evidence shows that her reaction was provoked and the
Hearing Officer failed to balance her reaction against the combativeness of the patient.
Such failure of findings does not comply with the regulations’ “under the
circumstances” requirement. Petitioner asserts that this is an error of law for which she
seeks a total a reversal of the agency decision rather than a remand for further
hearings.
The respondent answers that he is not required to hear or read all the testimony
presented. He cites, as does petitioner, Green v. Comm'r Dep’t of Mental Health, 2001 ME
86, J 15, 776 A.2d 612. Seealso N.E. Tel. & Tel. Co. v. Maine PUC, 448 A.2d 272, 279 (Me.
1982). The cite by petitioner regarding the Commissioner familiarizing himself with
sufficient evidence relates to the authority of agency commissioners to delegate
evidentiary and preliminary matters to subordinate officers. The standard, read in
proper context, is “as long as the officer both familiarizes himself with the evidence
sufficient to assure himself that all statutory criteria have been satisfied and retains
ultimate authority to render the decision, he can properly utilize subordinate officers to
au
gather evidence and make preliminary reports.” Davric Maine Corp. v. Maine Harness
Racing Comm'n, 1999 ME 99, J 16, 732 A.2d 289, 295.1
In response to the petitioner’s argument, the court does note that in his findings
of fact, the Hearing Officer concludes that: “During this incident Ms. Souther handled
Helen roughly while putting her into a chair and then Ms. Souther punched Helen with
considerable force in the left upper arm causing a significant bruise.” In his reasons for
recommendation, the Hearing Officer discusses the evidence and does make reference
to testimony as to client’s forearm. Nevertheless, such dicta does not control the
specific findings of fact nor does the inconsistency of the discussion remove the
evidence that was before the Hearing Officer. Notwithstanding the forearm/upper
arm misstatement, the Hearing Officer’s findings were supported by substantial
1 The petitioner also complains that the court should not consider the three transcripts of
proceedings as part of the record inasmuch as they were not relied upon by the Commissioner. That
request was denied. The transcripts, by necessity, must be a part of the record as the proceedings are, by
law, a matter of record. The court can clearly consider, in analyzing the Commissioner’s decision, that
the transcripts were not completed and available at the time the Commissioner made his final
decision.
evidence in the record. The bruise was documented, witness testimony was presented,
including an eye witness to the abuse, and further investigations recorded the existence
of bruises. In addition, the Hearing Officer’s determination of witness credibility is
entitled to substantial deference by this court as well as the Commissioner.
Petitioner’s assertion that the Hearing Officer, and therefore the Commissioner,
failed to take into consideration whether the petitioner’s actions were “excessive or
unwarranted under the circumstances” as recited in the regulations, is not consistent
with the facts. First of all, it has been the petitioner’s position throughout the
proceedings that the incident did not happen, that she did not slam down a plate, force
the client down into the chair and strike her on the arm. Therefore, the defense of
provocation was not presented to the Hearing Officer. Further, the Hearing Officer
was provided substantial evidence as to all of the circumstances that existed at the time
of the alleged conduct and was free to determine whether or not those circumstances
could have created some justification on the part of the petitioner. In fact, the Hearing
Officer found that the client was in a state of heightened agitation and combativeness.
Notwithstanding those “circumstances,” the conclusion was that the actions by the
petitioner constituted abuse.
A review of the record indicates ample competent evidence to support the
recommendation by the Hearing Officer and the conclusion by the Commissioner to
accept such recommendation. From the testimony of the eyewitness, an inference
could clearly be drawn that the surrounding circumstances were fully presented to the
Hearing Officer and considered by him. In the light of day, it is troubling to consider
the fact that the patient was diabetic and bruised easily and was frequently combative
due to advanced dementia, but while it has not been argued to this court that there are
no circumstances under which a CNA could be justified in striking a patient, it clearly
was not present in the instant case.
“An administrative decision will be sustained if, on the basis of the entire record
before it, the agency could have fairly and reasonably found the facts as it did.” Seider
v. Board of Examiners of Psychologists, 2000 ME 206, J 9, 762 A.2d 551, 555 (citing CWCO,
Inc. v. Superintendent of Ins., 1997 ME 226, J 6, 1703 A.2d 1258, 1261). “Inconsistent
evidence will not render an agency decision unsupported.” Id. (citations omitted) “The
burden of proof rests with the party seeking to overturn the agency's decision.” Id.
(citations omitted) “That party must prove that no competent evidence supports the
Board's decision.” Id. (citations omitted). Credibility determinations are “exclusively
the province of the Commission and will not be disturbed on appeal.” Sprague Electric
Co. v. Maine Unemployment Ins. Comm'n, 544 A.2d 728, 732 (Me. 1988).
For all reasons cited above, the entry will be:
The final decision of the Commissioner of the Department of
Human Services of June 4, 2001, in the matter of Vicki Souther is
AFFIRMED.
Dated: April 52002
onald H. Marden
Justice, Superior Court
Date Filed 7/3/01 Kennebec Docket No. AP-01-48
County
. 80C Appeal j
Action PP
J. MARDEN
VICKI SOUTHER KEVIN W. CONCANNON, Commissioner
DEPARTMENT OF HUMAN SERVICES
VS.
Plaintiff’s Attorney Defendant’s Attorney
Jonathan S.R. Beal, Esq. Renee Guignard, AAG
482 Congress Street 44 Oak St., 4th Floor
PO Box 75907 -2 > 7 7, a Loe Portland, Maine 04101-3014
Portland ME 04112
Date of
Entry
7/5/01 Petition for Review and Certicate of Service, filed. s/J. Beal, Esq.
Case file notice issued to J. Beal, Esq. - (filed 7/3/01)
7/23/01 Entry of Appearance, filed. s/Guignard, AAG (filed 7/20/01)
7/24/01 Letter informing the court that plaintiff has failed to served copies,
filed. s/Maurer, AAG (filed 7/23/01)
7/25/01 Copy of Letter, filed.
7/27/01 Motion for Enlargement of Time in Which to File Certified Record,
filed. (filed 7/20/01).
7/30/01 ORDER dated 7/2/01, filed. s/Studstrup, J.
Motion Granted. Enlargement of Time to file Certified Record is
August 15, 2001. Copies issued to Counsel of Record.
8/16/01 Motion for Enlargement of Tinfe in Which to File Remainder of Certified
Record, filed. s/Guignard, AAG.
Partial Certified Record, filed.
8/16/01 MOTION FOR ENLARGEMENT OF TIME, MARDEN, J.
Motion granted.
Copies mailed to attys of record.
8/29/01 Remaining portion of Certified Record, filed. s/Guignard, AAG
8/30/01 Notice of briefing schedule mailed to attys of record.
9/11/01 Motion to Correct Record with incorporated Memorandum of Law, filed.
s/Beal, Esq.
Consented-to Motion for Extension of Time for Filing Brief, filed. s/Beal,
Esq.
Certificate of Service, filed.
9/13/01 Notice of Discovery Service of Plaintiff's First Request for Admissions
served on Renee Guignard, AAG on 9/7/01, filed. s/J. Beal, Esq.
9/18/01 MOTION TO CORRECT RECORD WITH INCORPORATED MEMORANDUM OF LAW, Marden, J.
Without hearing motion DENIED; Respondent to file complete record by Oct.
5, 20013 transcript of Sec. H, 1/11/01 & 2/8/01 and hearing of 3/14/01 to