On appeal from decision and order of Commissioner of Health.
Antell, Matthews and Shebell. The opinion of the court was delivered by, Antell, P.J.A.D.
Before us again for review is this revocation proceeding by the Department of Health against respondent's license as a nursing home administrator. In accordance with our order of remand dated May 11, 1984, reported at 194 N.J. Super. 435 (App.Div.1984), the matter was referred by the Commissioner of Health to the Administrative Law Judge ("ALJ") "for detailed recommended findings of basic facts in support of his expressed conclusions together with a further statement of the reasoning process by which he reaches his result." See State, Dept. of Health v. Tegnazian, 194 N.J. Super. at 451. On July 3, 1984 the ALJ filed his detailed findings and further statement of reasons in support of his recommendation that disciplinary measures not be taken.
On August 15, 1984 the Acting Commissioner filed for the Department of Health his final decision and order in which he accepted the material factual findings of the ALJ but rejected his recommendation that respondent suffer no sanction beyond
a reprimand. Instead, a five year license suspension was imposed, reflecting a modification of the department's earlier penalty of permanent revocation.
The proceedings before us are based on charges that respondent had "committed acts of misconduct in the operation of a nursing home under [her] jurisdiction," in violation of N.J.A.C. 8:34-1.18(7) by abusing certain of the residents of the Home for the Armenian Aged and by violating their rights of privacy. These charges and the evidence relevant thereto were grouped and treated by the ALJ in five separate categories: (1) verbal abuse, (2) physical abuse, (3) privacy invasions, (4) locking a resident in a room with consequent risk to her safety, and (5) soliciting an employee of the home to attest a will she had not actually seen being signed.
(1) The ALJ found that on one occasion respondent raised her voice in a conversation with Mr. L. A. He noted that the conversation was in Armenian and that the witness who recounted it did not understand that language. Although both appeared to be speaking in anger, no one other than the witness took note of the incident. Further, L.A. later told the witness that the episode "was nothing."
Observing that merely raising one's voice is not an act of misconduct in context and that L.A. appeared to be untroubled by the event, the ALJ concluded that respondent's actions did not constitute misconduct. The Acting Commissioner took the view that L.A.'s comment that the affair "was nothing" should not be taken at face value. "We do not know how the resident felt . . .," the Acting Commissioner held, finding it "difficult to believe from human nature that a person who engages or is drawn into an angry conversation would be left completely unaffected, even though the person may not care to talk about it." He felt that the incident should be "viewed in the context
of other similar occurrences as part of a pattern and practice of loud and angry outbursts by Ms. Tegnazian."
(2) The ALJ found that on another occasion respondent rebuked a resident, Ms. J.M. for speaking on the telephone to a social worker named L.S. who had previously visited the Home. Respondent's determination that the residents should have no contact with L.S. arose from a previous incident in which L.S. had induced another resident to squander a relatively large sum of money. Respondent's purpose was to protect J.M. from a similar experience. Although the ALJ was convinced from all the testimony that respondent's actions were well intentioned and caused no ill effects to J.M. and that the incident was of a "distinctly minor nature", the Acting Commissioner felt otherwise. He reasoned that respondent should have realized that the residents under her care are entitled to communicate freely with others and that the incident, rather than being of a minor nature, reflected a "fundamental mis-perception by Ms. Tegnazian of the proper limits of her authority over the private affairs of the residents in the home."
(3) The ALJ found that respondent addressed another resident, J.K., "in an apparently angry manner." He found that J.K. was a troublesome resident, given to swinging his cane at other residents, urinating in the hallway and carrying to his room items of garbage which he collected in the neighborhood. The ALJ observed that he could not determine from the limited evidence on this subject what had precipitated the confrontation. Thus, he was unable to say whether respondent had reacted unreasonably. Although he conjectured that respondent might have shown greater reserve, taking into account that J.K. presented special problems he could not find misconduct. The Acting Commissioner agreed that it was "unclear whether there was cause for reprimanding this resident at the particular time of the incident. There may well have been such cause." But noting that respondent in her testimony had denied acting with anger toward J.K. the Acting Commissioner interpreted her denial as an implied concession that anger is an
inappropriate reaction even when dealing with a problem resident. Thus, this incident together with the others, the Acting Commissioner concluded, "shows a serious lack of control over the personal conduct expected of a professional administrator."
(4) The ALJ found that respondent on four or five occasions scolded a resident named Martin for wearing a dirty tie or dirty clothing, and might even have called him a dirty pig. He found further that Martin often wore disheveled and soiled dress and had to be reminded to change into clean garments. The ALJ found that this "minor insult" was intended to prompt the resident to be more presentable. He felt that the term "pig" was inappropriate, but found that it was used for the purpose of motivating Martin to improve his appearance and therefore did not constitute verbal abuse. The Acting Commissioner found that respondent's treatment of Martin was demeaning and, taken with other incidents, reflected an abuse of authority.
(5) The ALJ found that respondent would sometimes use inappropriate language in trying to motivate certain elderly female residents to engage in group activities. He found that on a few occasions she "may have used such language as 'get off your fat ass.'" Expressing the hope that respondent would in the future refrain from the use of intemperate language, he concluded that since it reflected a well intentioned, though tasteless, effort to involve the residents in active pursuits, the facts did not point to misconduct. The Acting Commissioner found that although the language may have been spoken by respondent for a salutary purpose, respondent's manner of address was insulting and improper.
(6) The ALJ found an instance where respondent raised her voice to resident M.M. who came to her office complaining of problems with her teeth. Respondent was upset by the fact that the resident's problem had not been taken care of earlier by the nursing section of the Home and some of her anger spilled over in the direction of M.M. This resident was long suffering from paranoid ...