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New Jersey Dep't of Health and Senior Services v. Robert


September 4, 2008


On appeal from the New Jersey Department of Health and Senior Services, Docket No. 06-313 OPC.

Per curiam.


Submitted August 26, 2008

Before Judges Lisa and Simonelli.

Appellant, Rachelle Robert appeals from the July 18, 2007 final decision of the Commissioner of the New Jersey Department of Health and Senior Services (Commissioner), which adopted the June 11, 2007 initial decision of Administrative Law Judge (ALJ) Joseph Lavery, ordering that, pursuant to 42 C.F.R. 483.156(c)(1)(iv), a finding of misappropriation of a resident's property be placed next to appellant's name on the New Jersey Nurse Aide Registry. Appellant disputes that her conduct constituted a misappropriation of a resident's property within the meaning of the federal regulation, and therefore argues that the notation should not have been placed next to her name. We reject appellant's argument and affirm.

Appellant was a certified nurse's aide at Shorrock Gardens Care Center in Brick, a long-term care facility. In September 2006, M.B., an elderly resident suffering from partial dementia, was under appellant's care. Long-term care residents had the option of having a telephone in their room, and if they did, they would be billed separately for its use. Many residents did not have a telephone. M.B. did. However, due to her cognitive impairment, M.B. did not make outgoing calls, but had the telephone in order to be able to receive incoming calls. Therefore, when M.B.'s family members received a phone bill reflecting a number of outgoing toll calls in September 2006, they requested that the facility investigate the matter.

The investigation involved nine calls made on three dates, September 7, 10 and 12. Six of the calls were made to appellant's home phone number, her daughter's cell phone number, and to her next door neighbor's number. Appellant admitted to investigators making these calls, and it was so stipulated at the hearing before the ALJ. She denied making the other three calls. Appellant contended she used M.B.'s phone on these occasions because she had lost or misplaced her cell phone and needed to call her twenty-one-year-old daughter, who was ill, to check on her. Her daughter was a college student, who suffered from no mental impairment or disability, who knew how to reach her mother at work, and who knew how to call 911 in case of an emergency.

Appellant acknowledged she was aware that nurse's aides were allowed to use a phone for such purposes at the nurse's station, and if it was a toll call, a code had to be entered. She contended she attempted to do so, but the nurse at the station was busy with other matters and would not enter the code to accommodate appellant's request. She said that when she placed the first of these calls, she asked M.B. for permission to use her phone, and M.B. gave it. Appellant contended that she was unaware the resident would incur a cost for the use of the phone. She said she believed the resident's phones were tied into the same lines as the phone at the nurse's station, which she was allowed to use, and she did not believe she did anything wrong in using M.B.'s phone.

As a result of the investigation into the calls, the Department of Health and Senior Services found that appellant engaged in misappropriation of M.B.'s property. Appellant filed an administrative appeal. The matter was designated as contested and referred to the Office of Administrative Law. ALJ Lavery heard the testimony of three State witnesses, Sophie Jane Vega (Director of Nursing Services at Shorrock Garden Care Center), Erin M. Swetits (a social worker at Shorrock Gardens), and Joseph Wattai (an investigator for the Office of Ombudsmen in the Department of the Public Advocate). He also heard appellant's testimony.

As a result of the investigation and finding, appellant was fired. On appeal, she does not contest her firing, but limits her argument to the placement of "misappropriation of resident property" next to her name in the Nurse Aide Registry, which has the effect of revoking her nurse's aide certification.

Federal regulations require that facilities housing elderly residents in nursing homes and other long-term care facilities "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property." 42 C.F.R. 483.13(c). In compliance with this requirement, Shorrock Gardens adopted such a policy, and the evidence revealed that employees, including appellant, were trained regarding the provisions and signed a document acknowledging receipt of the written policies.

The operative provision, upon which this appeal turns, states:

Misappropriation of resident property means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent.

[42 C.F.R. 488.301.]

The ALJ made these factual findings:

1. [Appellant] had been instructed to not use residents' phones, with or without permission.

2. [Appellant] knew that the phones in residents' rooms were separate from those at the nurse's station, the latter of which she could use freely after entering a code.

3. [Appellant] asked resident M.B. for permission on the first occasion she used her phone, and M.B. gave it.

4. [Appellant] knew resident M.B. had partial dementia and that M.B.'s fiscal and practical affairs were in the hands of her son and daughter-in-law.

5. [Appellant] used resident M.B.'s phone on September 7, September 10, and September 12 to call Asbury Park, Monmouth Junction, and Newark.

6. [Appellant]'s 21-year-old daughter, a college student during the dates in question, had no medically documented disability or chronic illness.

Thus, the ALJ found that the agency proved that appellant made all nine calls on the three dates. He concluded that she knew it was wrong and knew she did not have M.B.'s permission. He agreed with appellant that the federal misappropriation regulation required proof of wrongful intent, and found it was established by the evidence:

Notwithstanding, the legal prerequisite that underlying intent must be present for a finding of misappropriation is of no help to [appellant]. The record preponderates that she knew what she was about. It is not believable and is ingenuous to argue in her defense that a long-experienced CNA, over the course of three separate days, could have made calls in all innocence from a phone she knew to have been paid for by a resident, and in reliance on the ostensible permission allowed by this same resident, who is suffering from partial dementia. Respondent's claim that the calls were properly authorized thus falls short. More likely, and thus preponderating in evidence, is the consistent testimony of the State's witnesses. They credibly described resident M.B. as lacking the wit to confer such authorization, despite a pleasing personality which [appellant] argues is a sign of competence. The State witnesses were more persuasive in their description of M.B.'s state as mentally impoverished, an impaired condition apparent to them from medical records, observation, and anecdotal personal experiences with the resident.

The ALJ rejected the proffered defense of appellant's asserted emergent need to call her sick daughter. The calls were made on three separate days, there was no competent evidence to demonstrate any illness or incapacity of appellant's daughter, and some of the calls were made to numbers other than that of the daughter. Further, the ALJ noted that equitable considerations are precluded by the controlling rule, which mandatorily requires entry in the Nurse Aide Registry of any individual found to have misappropriated the property of a resident. See N.J.A.C. 8:39-43.7(b)1.

The charges for the nine phone calls totaled $1.73. Appellant argues before us that conduct involving such a small dollar amount cannot be deemed "wrongful" within the meaning of the federal regulations. Appellant further argues that, even if her conduct was deemed wrongful, it was not "deliberate" because, even if she was aware that she was violating facility rules, "it does not follow she knew or could reasonably have known the phone calls violated federal regulations that could permanently cost her certification." She also argues that the record does not support the finding that she acted without M.B.'s consent.

Our role in reviewing an agency decision is very limited. In re Taylor, 158 N.J. 644, 656 (1999). We will defer to such a decision unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. Id. at 656-57. Accordingly, we must determine whether the agency's findings "'could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Id. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We will not substitute our independent judgment for that of an agency because of any difference of opinion we may have with the persuasiveness of the evidence. First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967). We will intervene only if the agency's findings are clearly mistaken and so plainly unwarranted that the interests of justice demand our intervention and correction. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001).

Further, we attribute substantial discretion to the administrative agency's expertise in its field. Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 469 (1985). We therefore attribute great weight to the interpretation of legislation by an administrative agency to which its enforcement is entrusted. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 69-70 (1978). The agency interpretation of a statute should prevail "so long as it is not plainly unreasonable." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984).

Applying these standards, we reject appellant's arguments. The factual findings by the ALJ, adopted by the Commissioner, are well supported by the evidence as a whole. And, the interpretation by the ALJ, and thus by the Commissioner, of the applicable regulations is a reasonable one. Although the penalty is harsh, we cannot take issue with the conclusion that it is mandatory. The regulations require no monetary threshold and contain no de mininis exception. Appellant's conduct did constitute a deliberate exploitation or wrongful temporary use of M.B.'s property (namely her telephone and telephone service), for appellant's sole benefit (and providing no benefit to M.B.), without M.B.'s consent. Therefore, the conduct constituted "misappropriation of resident property" within the meaning of 42 C.F.R. 488.301, leading to the mandatory placement of the finding of misappropriation in the Nurse Aide Registry, pursuant to 42 C.F.R. 483.156(c)(1)(iv).



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