Furman v. Bd. of Nursing Home Adm'rs

• Decision Date: 28 July 2020
• Docket Number: WD 83385
• Citation: Furman v. Bd. of Nursing Home Adm'rs, 608 S.W.3d 742 (Mo. App. 2020)
• Parties: Dawn Renee FURMAN, Respondent, v. BOARD OF NURSING HOME ADMINISTRATORS, Appellant.
• Court: Missouri Court of Appeals

608 S.W.3d 742

Dawn Renee FURMAN, Respondent,

v.BOARD OF NURSING HOME ADMINISTRATORS, Appellant.

WD 83385

Missouri Court of Appeals, Western District.

Filed: July 28, 2020 Motion for Rehearing and/or Application for Transfer to Supreme Court Denied September 1, 2020

Marie Claire Dwyer, Jefferson City, Missouri, for appellant.

David F. Barrett, Jefferson City, Missouri, for respondent.

Before Division Four: Cynthia L. Martin, C.J., and Alok Ahuja and W. Douglas Thomson, JJ.

Alok Ahuja, Judge

The Board of Nursing Home Administrators denied Dawn Renee Furman's application for licensure as a nursing home administrator after finding that she had acted as the administrator of a Missouri assisted living facility for two months without first obtaining a Missouri license.On Furman's application for administrative review, the Administrative Hearing Commission(the "AHC" or "Commission") likewise denied her application.On judicial review, the circuit court found that the AHC had abused its discretion by denying Furman's license application, and reversed the Commission's decision.The Board appeals.We reverse the circuit court's judgment, and reinstate the AHC's decision denying Furman's license application.

Factual Background

Dawn Furman has been licensed by the State of Illinois as a registered nurse since 1996 and as a nursing home administrator since 2001.Neither license has ever been disciplined.At the time of the AHC hearing, Furman was employed as Vice President of Clinical and Operations with Saba Healthcare, which manages a number of skilled nursing homes.Furman testified that she was responsible for overseeing several separate facilities.Furman's responsibilities included overseeing the staff and residents of the facilities; ensuring regulatory compliance and the safety of the residents; and supervising the licensed nursing home administrator (the senior management employee) at each facility.

In 2015, Saba Healthcare purchased Brook Chateau, a large assisted living facility in Kansas City.Furman assumed responsibility for Brook Chateau, and the nursing home administrator at the facility "became one of [her] subordinates."

On October 15, 2016, the licensed nursing home administrator for Brook Chateau, Jacqueline Taylor, unexpectedly stopped reporting to work.Furman testified that while Taylor initially gave 30-days’ notice of her resignation on October 5, 2016, she left on October 15 without further notice.Furman testified that Brook Chateau had experienced significant turnover in the nursing home administrator position since Saba Healthcare's purchase of the facility; she testified that Taylor was the fifth administrator she had worked with in 2015-2016.Furman also testified that, at the time of Taylor's departure, the facility did not have an assistant administrator.At the time, the facility's license had been placed in "immediate jeopardy" by state regulators based on a complaint, meaning that if the regulatory issues were not promptly resolved, "the State will close the doors of the facility."

On October 20, 2016, the Board received an application from Furman for a Missouri nursing home administrator's license.At the AHC hearing, Furman testified that she had applied for a temporary emergency license at the same time that she submitted her application for full licensure.Although Furman testified that her application for a temporary emergency license was "bundled ... up" with her application for permanent licensure, and that she had "retained a copy of the full licensure application for [her] own record,"she was unable to produce a copy of any temporary emergency license application.

Furman testified at the AHC hearing that "the Board eventually contacted [her] and told [her] that they didn't receive any temporary emergency license application."Furman claimed that "I offered to submit another one at that point"(although she apparently never did so).

Furman e-mailed the Board inquiring about her temporary emergency license application on October 25, 2016.A member of the Board's staff responded the next day, stating that "[a]t this time our office has not received a [temporary emergency license application] for Brook Chateau.You can fax or email to our office."Furman testified that this e-mail was "the last time that [she] kn[e]w anything about this."Although Furman testified that she was aware that the Board had not received her temporary emergency license application in late October 2016, she apparently made no further effort to follow-up with the Board, or submit (or re-submit) an emergency license application.

Furman never received a temporary emergency license from the Board authorizing her to serve as Brook Chateau's nursing home administrator.

On October 31, 2016, Heather Duncan began working at Brook Chateau.Although Duncan was hired to serve as the facility's administrator, she did not have a nursing home administrator's license at the time, and began work at Brook Chateau in a different capacity.On November 5, 2016, Furman e-mailed information to Duncan concerning her application for a nursing home administrator license and a temporary emergency license.

The Board received Duncan's one-page application for a temporary emergency license, along with her application for full licensure, on December 14, 2016 – two months after Taylor's departure, and more than six weeks after Duncan had begun working at Brook Chateau.(Furman testified that Duncan had delayed submitting her license application in order to have additional time to prepare for the licensing examination.)Duncan's emergency license application listed Furman as the "Administrator who is or will be vacating the position," and indicated that Furman would leave that position on December 21, 2016.Duncan's application explained that the reason for her emergency license application was that "Jackie Taylor resigned and did not forfill [sic ] her 30 day notice.Dawn Renee Furman has been sitting as the administrator."The application indicated that Duncan would "continue as administrator after exam and licensure."In addition to Duncan's signature as the applicant, Furman signed Duncan's emergency license application as the "Facility Authority," and listed her title as "VP Clinical Services."

In her testimony before the AHC, Furman denied that she was identified as Brook Chateau's nursing home administrator in Duncan's temporary emergency license application.Furman testified that she was merely identified in Duncan's emergency license application as Brook Chateau's "administrator,"not as its "nursing home administrator."She testified that she executed the form which identified her as Brook Chateau's "administrator" because she"ha[d] administrative responsibilities for that ... organization."She denied that Duncan's application for an emergency license identified Furman as the "nursing home administrator," or that she"intend[ed] to convey to anyone at any time that [she] w[as] the nursing home administrator."Furman admitted, however, that in the emergency license application which she claimed to have submitted on her own behalf in October 2016, she listed Jacqueline Taylor – Brook Chateau's departed nursing home administrator – as the "Administrator who is or will be vacating the position."

After receiving Duncan's temporary emergency license application, Danielle Calvin, a Health Program Representative with the Board, began an investigation.Calvin was concerned that Furman was listed in Duncan's emergency license application as Brook Chateau's existing administrator, even though she was not then licensed in Missouri as a nursing home administrator.

On December 15, 2016, Calvin called Brook Chateau to verify the name of the facility's administrator.A staff member told Calvin that Duncan was the current administrator, and transferred her call to Duncan.Duncan told Calvin that Furman "is and has been the facility's Administrator since the previous Administrator's [sic ](Jacqueline Taylor) left."Duncan transferred Calvin's call to Furman.Calvin's written record of the telephone conversation stated that Furman twice confirmed that she had been working as the nursing home administrator for the facility since October 15, 2016(when Taylor left).When Calvin asked for Furman's Missouri license number, Furman stated that she had her Illinois license and a Missouri temporary emergency license, although she acknowledged to Calvin that she had never received notification from the Board "that any paperwork had been received or approved."Calvin told Furman that the Board had not received or approved a temporary emergency license application for Furman, and that Brook Chateau would need to immediately put in place a fully licensed nursing home administrator.

On March 2, 2017, the Board denied Furman's application for licensure as a nursing home administrator, "based on [Furman] acting or serving as the administrator of Brook Chateau from October 15, 2016 through December 14, 2016 without being properly licensed by the Board."

Furman filed a complaint with the AHC to contest the Board's denial of her license application.After a hearing, the AHC issued a written decision denying Furman's application for a nursing home administrator license.In its decision, the AHC found that Furman acted as a nursing home administrator without a license in violation of § 344.020.¹On that basis, the AHC found cause to deny Furman's application under § 344.050.2(6)(for violating a provision of chapter 344 of the Revised Statutes of Missouri).The AHC found that Furman's testimony "contained internal inconsistencies and was also inconsistent with the documentary evidence and the testimony of the Board's witnesses," and that "the timeline of events belies her claim that she did not act as the nursing home administrator for the facility."The Commission found that Furman inappropriately "attempt[ed] to minimize her actions" by "focusing on the word ‘administrator...