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

September 4, 2008

NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES, PETITIONER-RESPONDENT,
v.
RACHELLE ROBERT, RESPONDENT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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