# Zipporah Maina, V . State Of Washington, Dshs

> Court of Appeals of Washington · June 13, 2023

URL: https://www.frixlaw.com/law-library/cases/9898488

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** June 13, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9898488

## How later opinions describe it (automated extraction)

- reversing the superior court’s determination that DSHS’s actions were not substantially justified and noting that “[w]e are wary of upholding a fee judgment . . . particularly where there has been no determination that DSHS’s actions were arbitrary, willful, or capricious.”
- declining to review an issue that has not been briefed or argued in any meaningful way
- declining to review an issue that has not been briefed or argued in any meaningful way

## Opinion text

Filed
Washington State
Court of Appeals
Division Two

June 13, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
In the Matter of L.S., a vulnerable adult: No. 57027-1-II

ZIPPORAH MAINA,

Respondent, UNPUBLISHED OPINION

v.

WASHINGTON STATE DEPARTMENT OF
SOCIAL AND HEALTH SERVICES,

Appellant.

CHE, J.⎯Zipporah Maina began working at Linden Grove Health Care Center (Linden

Grove), a skilled nursing center, in July 2018. Linden Grove trained Maina how to use

mechanical lifts to conduct safe patient transfers from sitting to standing and from one place to

another. Linden Grove had a policy requiring two caregivers to be present to use a sit to stand

lift—a form of a mechanical lift.

In September, Maina transferred a patient using a mechanical lift without assistance.

Linden Grove reprimanded her and provided additional training regarding safe use of the

mechanical lifts. In October, LS—a patient at Linden Grove—requested to be taken to the

bathroom. Maina told him to wait while she searched for another person to help with the

transfer. LS requested a transfer again after five minutes. Maina returned and used a sit to stand

lift without assistance, resulting in a laceration to LS’s finger.
No. 57027-1-II

The Washington Department of Social and Health Services (DSHS) investigated the

incident and made an initial finding of neglect under the Abuse of Vulnerable Adults Act.1 An

administrative law judge (ALJ) entered an initial order concluding that Maina neglected LS.

DSHS’s Board of Appeals (Board) entered its final order, affirming that determination. The

Pierce County Superior Court reversed.

DSHS appeals. Maina argues that (1) the finding of neglect was not supported by

substantial evidence; (2) the finding was arbitrary and capricious; (3) the Board’s order was

based on various incorrect interpretations and applications of the law; (4) she was immunized

from a finding of neglect because she was compelled to ensure LS’s rights were considered

under RCW 70.129.140; and (5) she is entitled to attorney fees under the equal access to justice

act (EAJA).2

We hold that (1) the Board incorrectly applied the law by determining that two unrelated

incidents of a policy violation regarding different patients constituted a “pattern” under former

RCW 74.34.020(16)(a); (2) the Board incorrectly applied the law by applying the child neglect

standard in Brown to the neglect of a vulnerable adult;3 and (3) the determination that Maina’s

act demonstrated a serious disregard of consequences of such a magnitude as to constitute a clear

and present danger to LS’s health, welfare, or safety is not supported by substantial evidence.

We deny Maina’s request for attorney fees. Lastly, Maina’s other arguments are unavailing.

Consequently, we affirm the superior court order reversing the Board’s final order.

1
The Abuse of Vulnerable Adults Act is codified in Chapter 74.34 RCW.
2
The EAJA is codified at RCW 4.84.340, .350, and .360.
3
Brown v. Dep’t of Soc. & Health Servs., 190 Wn. App. 572, 590, 360 P.3d 875 (2015).

2
No. 57027-1-II

FACTS

Maina began working as a certified nursing assistant at Linden Grove in July 2018.

Shortly thereafter, Maina signed a document containing the following statement:

This facility is a “NO LIFT” facility and all our transfers are mechanical lift, slide
board assist, transfer pole assist, or 1 assist pivot. All transfers not using [a]
mechanical lift should have a gait belt in use.

I have been instructed by another staff member and I am comfortable with
mechanical lifts and transferring res[i]d[ents], and can demonstrate safe and
appropriate transfers.

Clerk’s papers (CP) at 23. Linden Grove trained Maina on how to conduct safe transfers.

Linden Grove assessed patients to determine which equipment was needed for transferring

patients. To that end, Linden Grove had a policy that required two people to conduct a patient

transfer using a sit to stand lift for safety reasons. Additionally, that policy also required the use

of a “gait belt” for certain patient transfers.

In September 2018, Maina violated the aforementioned policy by transferring a patient on

a mechanical lift without assistance and without using a gait belt. The patient fell but was not

injured as a result of Maina’s conduct. Linden Grove reprimanded her. Maina signed an

Individual Performance Improvement Plan after the incident and received training on how to

properly use the mechanical lifts.

On October 2, 2018, patient LS requested a transfer to the bathroom. LS was required to

be transferred using a mechanical lift. Maina told him to wait while she searched for assistance.

Maina testified that she asked two or three nursing assistants for help, but could not remember

their names. More generally, Maina testified that there were three or four staff members at

3
No. 57027-1-II

Linden Grove who could have helped her that evening, and that she was responsible for between

ten to fourteen patients.

After Maina spent five minutes attempting to look for help, LS requested assistance

again. Maina returned and put LS on a sit to stand lift without assistance. As Maina turned LS

on the lift, his hand got caught in between a window ledge and part of the lift, resulting in a deep

laceration on his pinky finger. Linden Grove terminated Maina’s employment that day.

Adult Protective Services (APS)—a division of DSHS—received a report that month

about the incident and began to investigate. APS made an initial finding of neglect under former

RCW 74.34.020(16) (2018), amended by LAWS OF 2020, ch. 312, § 735 (moving the definition

of “neglect” from subsection sixteen to fifteen). Maina requested a hearing to dispute that

determination.

After a hearing, an ALJ entered an initial order, concluding that Maina neglected LS, a

vulnerable adult. Maina filed a Petition for Review of Initial Decision. The Board entered its

Review Decision and Final Order, affirming the initial order. It concluded that Maina engaged

in neglect, both through a pattern of conduct and through a single egregious incident under

former RCW 74.34.020(16)(a) and (b).

Mania petitioned for reconsideration of the review decision. The Board denied the

request for reconsideration and adopted the review decision as the final administrative order.

Maina appealed to the Pierce County Superior Court. The superior court reversed the Board’s

determination.

DSHS appeals.

4
No. 57027-1-II

ANALYSIS

I. LEGAL PRINCIPLES

We review this case under the Administrative Procedure Act, codified in chapter 34.05

RCW. This appeal came before us through a petition for judicial review of a final agency action

under RCW 34.05.570(3). We may grant relief from a final agency action—the Board’s final

order—only on the bases in RCW 34.05.570(3). Of the nine bases for relief, at issue here, we

may grant relief if “(d) The agency has erroneously interpreted or applied the law; (e) The order

is not supported by evidence that is substantial . . .; [or] (i) The order is arbitrary or capricious.”

RCW 34.05.570(3). We apply chapter 34.05 RCW directly to the agency’s record—without

consideration of the superior court’s decision. Karanjah v. Dep’t of Soc. & Health Servs., 199

Wn. App. 903, 914, 401 P.3d 381 (2017). Our review is limited to the record that was before the

agency. RCW 34.05.558.

The party asserting the invalidity of the agency action bears the burden of showing the

aforementioned criteria exist in this case. RCW 34.05.570(1)(a). We review legal

determinations de novo, but “we give ‘substantial weight to the agency’s interpretation of the

law it administers, particularly where the issue falls within the agency’s expertise.’” Karanjah,

199 Wn. App. at 914 (quoting Goldsmith v. Dep’t of Soc. & Health Servs., 169 Wn. App. 573,

584, 280 P.3d 1173 (2012)). “[T]he decision must be supported by a sufficient quantity of

evidence to persuade a fair-minded person of the truth or correctness of the order.” Callecod v.

Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997) (citing RCW 34.05.570(3)(e)).

We review findings of fact for substantial evidence, but “[w]e do not weigh witness

credibility or substitute our judgment for the agency’s findings of fact.” Goldsmith, 169 Wn.

5
No. 57027-1-II

App. at 584. “Unchallenged findings are verities on appeal.”4 Robel v. Roundup Corp., 148

Wn.2d 35, 42, 59 P.3d 611 (2002).

Under the Abuse of Vulnerable Adults Act, neglect may occur in two ways under former

RCW 74.34.020(16). Neglect may occur when a person with a duty of care engages in a pattern

of conduct or inaction that “fails to avoid or prevent physical or mental harm or pain to a

vulnerable adult.” Former RCW 74.34.020(16)(a). Alternatively, neglect may occur when a

person with a duty of care engages in an act or omission “that demonstrates a serious disregard

of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable

adult’s health, welfare, or safety, including but not limited to conduct prohibited under RCW

9A.42.100.” Former RCW 74.34.020(16)(b).

II. REVIEW OF THE BOARD’S DECISION

A. Arbitrary and Capricious

Maina appears to argue that the Board’s order is arbitrary and capricious because the

Board “failed to examine the facts and circumstances regarding the Respondent’s actions.” Br.

of Resp’t at 33. Maina does not further develop this argument. And we do not review this

argument as it is raised in passing and has not been argued in any meaningful way. Ameriquest

Mortage Co. v. Attorney Gen., 148 Wn. App. 145, 166, 199 P.3d 468 (2009) aff’d on other

grounds, 170 Wn.2d 418, 241 P.3d 1245 (2010) (declining to review an issue that has not been

briefed or argued in any meaningful way).

4
Maina does not assign error to any of the Board’s findings of fact. Consequently, the Board’s
findings of fact are verities on appeal.

6
No. 57027-1-II

B. Interpretations and Applications of the Law and Substantial Evidence

Maina argues that the Board erroneously interpreted and applied the law in making its

neglect determination, and substantial evidence does not support the Board’s finding of neglect.

We agree that the Board erred on both grounds.

1. Former RCW 74.34.020(16)(a)

Mania argues that the Board incorrectly applied the law by determining that her two

incidents regarding patient transfers constituted a pattern of conduct that failed to avoid or

prevent physical or mental harm under former RCW 74.34.020(16)(a), and that the Board’s

analysis improperly attempted to broaden its authority to take punitive actions. DSHS appears to

concede that Maina’s conduct did not constitute neglect under former RCW 74.34.020(16)(a) by

abandoning this basis for neglect on appeal. We accept its concession.

Neglect may occur when a person with a duty of care engages in a pattern of conduct or

inaction that “fails to avoid or prevent physical or mental harm or pain to a vulnerable adult.”

Former RCW 74.34.020(16)(a). When interpreting a statute, we give the words their common

and ordinary meaning absent some ambiguity or statutory definition. HomeStreet, Inc. v. Dep’t

of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009). A pattern ordinarily means “a reliable

sample of traits, acts, or other observable features characterizing an individual

.” Pattern, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (8th ed. 2002).

Here, in September 2018, Maina transferred a patient on a mechanical lift without

assistance and without using a gait belt. On October 2, 2018, Maina transferred LS without

assistance. Despite the involvement of a mechanical lift in both incidents, these two incidents

involved different factual circumstances. In particular, the second incident involved both

7
No. 57027-1-II

potential urgent need for the patient to be moved and an attempt to obtain assistance from other

staff. In contrast, the earlier incident involved a different patient and did not result in an injury.

The Board incorrectly applied the law by determining that two unrelated incidents of a policy

violation regarding different patients constituted a “pattern” under former RCW

74.34.020(16)(a). Thus, we accept DSHS’s concession and hold that the Board erred in its

application of former RCW 74.34.020(16)(a) and its determination that Maina neglected a

vulnerable adult pursuant to it.

2. Reliance on the Benefit of Hindsight

Maina argues that the Board improperly viewed the matter with the benefit of hindsight,

which, she says, is a clear error of law. Maina asserts that the Board used the benefit of

hindsight to consider the September policy violation, the October incident at issue, and the

subsequent injury to make its neglect determination.

Argument must be supported by references to relevant parts of the record. RAP

10.3(a)(6); see Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992).

The order does not indicate whether the Board relied too heavily on the benefit of

hindsight to determine if Maina neglected LS because an injury resulted. And Maina failed to

provide citations to the record to support such a conclusion. Consequently, we decline to reach

this argument.

3. Former RCW 74.34.020(16)(b)

Maina argues the Board incorrectly applied former RCW 74.34.020(16)(b) by utilizing

the child neglect standard under Brown to analyze her conduct regarding a vulnerable adult.

8
No. 57027-1-II

DSHS concedes that the Board used the wrong legal standard, but argues that we can affirm the

agency by applying the correct legal standard to the unchallenged findings. In response, Maina

argues that DSHS knew that the Board’s order included overturned case law, and it should not

benefit from this error.5 Maina also argues that the Board’s neglect determination under former

RCW 74.34.020(16)(b) is not supported by substantial evidence. We agree that the Board erred

in applying the law by using the child neglect standard. We also agree that the Board’s neglect

determination under former RCW 74.34.020(16)(b) is not supported by substantial evidence.

Under former RCW 74.34.020(16)(b), neglect is defined as “an act or omission by a

person or entity with a duty of care that demonstrates a serious disregard of consequences of

such a magnitude as to constitute a clear and present danger to the vulnerable adult’s health,

welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42.100.”

Under this provision, a showing of neglect requires five elements: (1) the person committed an

act or omission, (2) that person owes a duty of care to (3) a vulnerable adult, (4) the act or

omission demonstrated a serious disregard of consequences, and (5) the disregard was of such a

magnitude as to constitute a clear and present danger to the vulnerable adult’s health, welfare, or

safety. Former RCW 74.34.020(16)(b); see also Woldemicael v. Dep’t of Soc. & Health Servs.,

19 Wn. App. 2d 178, 183-84, 494 P.3d 1100 (2021). And “serious disregard requires more than

simple negligence.”6 Woldemicael, 19 Wn. App. 2d at 182.

5
DSHS informed the superior court of the proper standard in its trial briefing. Maina appears to
argue that because DSHS knew the Board applied the improper standard, DSHS needed to ask
the superior court for remand. And because the DSHS failed to do so, it should be precluded
from arguing that remand is proper here. Maina does not cite authority to support this
proposition. We disagree that DSHS cannot argue that remand is the appropriate remedy for an
error of law before this court merely because it did not argue that at the superior court.
6
Serious disregard and clear and present danger are not defined in RCW 74.34.

9
No. 57027-1-II

Here, the Board interpreted “serious disregard of consequences of such a magnitude as to

constitute a clear and present danger to the vulnerable adult’s health” as reckless disregard under

Brown, 190 Wn. App. at 590 (analyzing the meaning of “neglect” under the Abuse of Children

Act). But “Brown does not apply to neglect of a vulnerable adult, and the proper standard is the

statutory definition of ‘neglect’ in RCW 74.34.020(16)(b).” Woldemicael, 19 Wn. App. 2d at

181. Accordingly, the Board erroneously interpreted the law of neglect.

Nevertheless, we may affirm the Board’s order “on any basis established by the pleadings

and supported by the record.” Pac. Land Partners, LLC v. Dep’t of Ecology, 150 Wn. App. 740,

753, 208 P.3d 586 (2009). In applying the five elements of neglect, there is no dispute that

Maina owed LS a duty of care, that LS is a vulnerable adult, and that she committed an act or

omission when LS was injured.7 The question is then whether there is substantial evidence to

support the final two elements: the aforementioned act constituted a serious disregard of the

consequences and then whether the disregard was of such a magnitude as to constitute a clear

and present danger to LS’s health, welfare, or safety.

Linden Grove had a policy requiring two staff members to operate the sit to stand lift for

safe resident handling. Linden Grove trained Maina how to conduct safe mechanical lifts in

August. Maina engaged in an inappropriate mechanical lift the next month. Maina then

7
Maina appears to argue that the Board erred in applying the law by considering two separate
acts to determine that she engaged in neglect under former RCW 74.34.020(16)(b). The Board
determined that Maina’s culpable act was using the sit to stand lift by herself, in violation of
Linden Grove’s policy and her training. The Board did not determine Maina engaged in two
culpable acts that supported the neglect determination. Rather, the Board appeared to emphasize
Maina’s prior violation of Linden Grove’s mechanical lift policy to show that she had reason to
know of the dangers of engaging in such a lift. Consequently, Maina’s argument fails.

10
No. 57027-1-II

participated in an Individual Performance Improvement Plan after the accident and received

training on the proper mechanical transfer procedure. Maina transferred LS without assistance in

violation of facility policy in October.

Maina testified that there were three or four staff members at Linden Grove who could

have helped her that evening, and that she was responsible for between ten and fourteen patients.

Maina testified she asked two or three nursing assistants for help, but she could not remember

their names.

Although the temporal proximity of Maina’s initial training, her violation of Linden

Grove policy, her retraining, and her subsequent violation of Linden Grove policy support a

finding of negligence, those circumstances do not show more than simple negligence.

Consequently, there is not substantial evidence supporting the conclusion that her act

demonstrated a serious disregard of consequences.

And even if there was substantial evidence to support such a determination, there is not

substantial evidence to show that Maina’s disregard was of such a magnitude as to create a clear

and present danger to LS. The record is unclear as to what tasks and duties each of the two staff

members are responsible for while using the sit to stand lift and the consequences of its improper

use. The Board did not analyze what risks are associated with transferring a patient on a sit to

stand lift without a second person. Moreover, there are no findings of fact that relate to the

likelihood of such risk, nor the magnitude of such risk, nor evidence in the record to that end.

On appeal, DSHS argues that violating this policy creates a substantial risk of falling, and

falling is always a “clear and present danger” to vulnerable adults. Br. of Appellant at 22 (citing

Jeffrey A. Pitman and Katherine E. Metzger, Nursing Home Abuse and Neglect and the Nursing

11
No. 57027-1-II

Home Reform Act: An Overview, 14 NAELA J. 137, 143 (2018)). But this evidence was not

presented at the hearing, and consequently, we do not consider it. RCW 34.05.558. DSHS also

emphasizes that the risk of falling and its dangers are reflected by Linden Grove’s policy.

Although Linden Grove’s policy is reflective of the facility’s concerns about the risks associated

with transferring patients on a sit to stand lift without assistance, it does not state the risks

associated with such a transfer; it does not state the probability of such risks occurring nor the

magnitude of such risks should they occur. The policy merely underscores Linden Grove’s

belief that such transfers are unsafe. Of note, LS did not fall during Maina’s transfer of him.

Consequently, we hold there is not substantial evidence to support the determination that

Maina’s act demonstrated a serious disregard of potential consequences. Moreover, even if there

was substantial evidence to support that determination, we hold that there is not substantial

evidence to show that the disregard was of such a magnitude as to constitute a clear and present

danger to LS’s health, welfare, or safety. Therefore, the Board erred by ruling that Maina

neglected LS under former RCW 74.34.020(16).

III. PATIENT RIGHTS

Maina appears to argue that she was immunized from a finding of neglect because she

was compelled to ensure LS’s rights were considered under the Civil Rights Act of 1964, RCW

70.129.140, and WAC 388-76-10510.8 We disagree.

8
We decline to reach the argument in as much as it relies on the Washington State Civil Rights
Act of 1964 because the Act is only raised in passing. Ameriquest Mortage, 148 Wn. App. at
166. We also decline to reach the argument in as much as it relies on WAC 388-76-10510
because chapter 388-76 WAC regulates Adult family homes—“residential home[s] in which a
person or an entity is licensed to provide personal care, special care, room, and board to more
than one but not more than six adults.” WAC 388-76-10000. Linden Grove is a skilled nursing
facility, not a residential home, and thus, chapter 388-76 WAC does not apply here.

12
No. 57027-1-II

Chapter 70.129 RCW applies to long-term care facilities. RCW 70.129.010(4). RCW

70.129.140(2) establishes

Within reasonable facility rules designed to protect the rights and quality of life of
residents, the resident has the right to:
....
(c) Make choices about aspects of his or her life in the facility that are
significant to the resident;
....
(e) Unless adjudged incompetent or otherwise found to be legally
incapacitated, participate in planning care and treatment or changes in care and
treatment;
(f) Unless adjudged incompetent or otherwise found to be legally
incapacitated, to direct his or her own service plan and changes in the service plan,
and to refuse any particular service so long as such refusal is documented in the
record of the resident.

Assuming without deciding that Linden Grove is a long-term care facility, RCW

70.129.140(2) does not immunize Maina from a finding of neglect. Although LS had the right to

participate in his treatment under that statute, that statute did not allow Maina to violate

“reasonable facility rules designed to protect the rights and quality of life of residents.” RCW

70.129.140(2) . And Linden Grove’s policy that required two people for any patient transfer

using a sit to stand lift to ensure safe transfers appears on its face to be a “reasonable facility

rule.” Consequently, Maina’s argument fails.

ATTORNEY FEES

Maina argues that we should award her attorney fees as the prevailing party under the

EAJA. DSHS argues that we should not award Maina attorney fees because its actions were

substantially justified. We agree with DSHS.

RAP 18.1(a)-(b) provides for the recovery of reasonable attorney fees on appeal if

“applicable law grants to a party the right to recover reasonable attorney fees or expenses on

13
No. 57027-1-II

review” and the party properly requests it. The EAJA authorizes an award of attorney fees to “a

qualified party that prevails in a judicial review of an agency action . . . unless the court finds

that the agency action was substantially justified or that circumstances make an award unjust.”

RCW 4.84.350(1). Even if the agency action is ultimately incorrect, it “is substantially justified

if it had a reasonable basis in law and in fact.” Rios-Garcia v. Dep’t of Soc. & Health Servs., 18

Wn. App. 2d 660, 674, 493 P.3d 143 (2021). Where agency action is arbitrary and capricious,

such action is not substantially justified. Raven v. Dep’t of Soc. & Health Servs., 177 Wn.2d

804, 832, 306 P.3d 920 (2013) (reversing the superior court’s determination that DSHS’s actions

were not substantially justified and noting that “[w]e are wary of upholding a fee judgment . . .

particularly where there has been no determination that DSHS’s actions were arbitrary, willful,

or capricious.”).

Because we reverse the Board’s decision, Maina is the prevailing party. But DSHS’s

interpretation and application of RCW 74.34.020 was substantially justified. DSHS’s actions did

not appear arbitrary, willful, or capricious, nor was DSHS unreasonable in pursuing a finding of

neglect. Because DSHS’s actions were substantially justified, we decline to award attorney fees.

CONCLUSION

We hold that (1) the Board incorrectly applied the law by determining that two unrelated

incidents of a policy violation regarding different patients constituted a “pattern” under former

RCW 74.34.020(16)(a); (2) the Board incorrectly applied the law by applying the child neglect

standard in Brown to the neglect of a vulnerable adult; and (3) the determination that Maina’s act

demonstrated a serious disregard of consequences of such a magnitude as to constitute a clear

and present danger to LS’s health, welfare, or safety is not supported by substantial evidence.

14
No. 57027-1-II

We deny Maina’s request for attorney fees. We affirm the superior court order reversing the

Board’s final order

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Che, J.
We concur:

Glasgow, C.J.

Cruser, J.

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9898488. Public record. Not legal advice.