Harrow v. Axelrod

Decision Date23 February 1989
Citation538 N.Y.S.2d 103,145 A.D.2d 262
PartiesIn the Matter of Richard A. HARROW, Petitioner, v. David AXELROD, as Commissioner of the Department of Health of the State of New York, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Fried, Spector, Scher & Feldman, New York City (Jerome T. Levy, Irwin R. Karassik and Susan B. Kayser, of counsel), for petitioner.

Robert Abrams, Atty. Gen., Albany (Clifford A. Royael and Peter H. Schiff, of counsel), for respondents.


LEVINE, Justice.

Petitioner was licensed as a nursing home administrator in 1973 by respondent Board of Examiners of Nursing Home Administrators (hereinafter the Board). He was the administrator of the Beth Rifka Nursing Home (hereinafter Beth Rifka), located on Staten Island, from July 10, 1981 to August 26, 1982. Beth Rifka was built as a 240-bed facility. When petitioner assumed the position of administrator the utilization of 40 beds had been approved by the State Department of Health (hereinafter the Department), and an additional 80 beds were approved by November 1981. In March 1982, a visit by Department representatives was conducted in response to Beth Rifka's request for the approval of an additional 40 beds. That visit revealed serious deficiencies in the quality of services and administration of the facility and the Department decided to do a full survey, which was conducted over the third week of April 1982. An exit interview took place during the first week of May at which petitioner was verbally informed of the problems at Beth Rifka, followed by a 94-page statement of deficiencies indicating violations of Federal and State regulations in eight major categories, including, inter alia, services of the medical director, dietary, nursing, pharmaceutical services and medical record-keeping. Petitioner submitted a plan of correction in mid-June 1982. An interim visit by Department representatives, requested by petitioner, took place on June 24, 1982, but was discontinued because of a lack of progress in correcting the shortcomings noted in the April survey. The facility was resurveyed in July. This revealed virtually all of the same code violations, with the addition of deficiencies noted in physicians' services. Of the eight categories of unacceptable conditions, seven directly affected patient health and security. The Department continued to closely scrutinize the operation of Beth Rifka, leading to a temporary suspension of the facility's operating certificate in late August 1982 and, after a hearing, revocation of its license, confirmed on review by this court (Matter of Beth Rifka, Inc. v. Axelrod, 91 A.D.2d 1143, 458 N.Y.S.2d 715, lv. denied 58 N.Y.2d 607, 460 N.Y.S.2d 1027, 447 N.E.2d 87).

In February 1983, petitioner was served with an administrative disciplinary petition containing 20 separate charges stemming from his tenure as administrator of Beth Rifka. The petition cited to Public Health Law § 2897(1)(f), under which a nursing home administrator is subject to license revocation, a suspension or other penalties for "unethical conduct as defined by rules adopted by the board and certified by the [State Commissioner of Health]". Each charge specifically alluded to two of the regulatory definitions of unethical conduct, namely "violation of any of the provisions of law or codes, rules or regulations of the * * * agency of the State having jurisdiction of the operation * * * of nursing homes" (10 NYCRR 96.1[m][2] ) and "failure to exercise true regard for the safety, health and life of patients" (10 NYCRR 96.1[m][14] ). Most of the charges referred to specific violations of the State nursing home regulations for the operation of such facilities, as to organization, administration and patient services (10 NYCRR art 4, parts 415-416).

At the administrative hearing that followed, the Department introduced the transcript of testimony, exhibits, findings and order from the Beth Rifka revocation hearing under a stipulation that the witnesses in that prior proceeding would be produced for cross-examination by petitioner. * The Department elicited direct testimony from various staff members who were involved in the several surveys conducted at Beth Rifka during the pertinent period. Petitioner's defense consisted of cross-examination of the Department's witnesses and the testimony of petitioner in his own behalf.

At the conclusion of the hearings, the Administrative Law Judge (hereinafter ALJ) exonerated petitioner, ruling that he could not be held responsible for the violations at Beth Rifka of code and regulation provisions concerning mandates applicab to nursing home operators, in contrast to those provisions expressly applicable to administrators. The ALJ found that petitioner did not fail to exercise true regard for patients, in that he made reasonable efforts to rectify the unsatisfactory conditions at the facility, under the deteriorating circumstances at Beth Rifka described in petitioner's testimony. The Board rejected the ALJ's findings and conclusions. It found that petitioner "failed miserably to meet his code-mandated duties to make operating decisions and supervise staff" (citing 10 NYCRR 96.1[m][2] ), and "abdicated duties imposed upon him by his status as a licensed individual". The Board sustained the charges and revoked petitioner's license. This CPLR article 78 proceeding seeking to challenge that determination ensued.

The Board's determination should be confirmed. Initially, we reject petitioner's basic contention that he may not be disciplined for nursing home deficiencies in services to patients other than those specifically defined under the regulations as duties of a nursing home administrator. In Matter of Lewis v. Board of Examiners of Nursing Home Adm'rs, 97 A.D.2d 671, 469 N.Y.S.2d 216, lv. denied 61 N.Y.2d 604, 473 N.Y.S.2d 1025, 462 N.E.2d 155, we upheld suspension of an administrator's license on the basis of deficiencies in dietary and housekeeping practices at a nursing home, although such services were not code-mandated responsibilities of a nursing home administrator. In Lewis, we held that improper nutritional and food storage practices, similar to those established here, supported the Board's finding of an administrator's failure to exercise true regard for patients' safety, health and life (10 NYCRR 96.1[m][14] ).

The Board could also impose liability on the basis of the grave violations at Beth Rifka of code and regulation provisions for governance and patient services in the operation of nursing home facilities, under the facts established here. Petitioner admitted that, even before the disclosures of the Department's April 1982 survey, he had serious doubts regarding the ability of Beth Rifka's medical director to monitor and supervise the medical staff through audit of patients' records. Then, in early May 1982, he received oral notification of the results of the April survey which, as previously described, revealed serious violations at the facility in eight major categories. Among the specific substandard conditions noted, the report of the April survey addressed the failure of the medical director to review the work of staff physicians and check on the accuracy and completeness of patient records; excessive use of patient restraints; poor nursing...

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2 cases
  • Rothman v. Axelrod
    • United States
    • New York Supreme Court — Appellate Division
    • 8 Mayo 1989
    ...Administrators, 97 A.D.2d 671, 469 N.Y.S.2d 216, lv. denied 61 N.Y.2d 604, 473 N.Y.S.2d 1025, 462 N.E.2d 155; Matter of Harrow v. Axelrod, 145 A.D.2d 262, 538 N.Y.S.2d 103). We find that the regulations in question were sufficiently specific and clear and that they conveyed a definite warni......
  • Demisay v. Axelrod, 1
    • United States
    • New York Supreme Court — Appellate Division
    • 27 Noviembre 1991
    ...conduct in his individual capacity as the facility's administrator (see, Public Health Law § 2897[1][f]; Matter of Harrow v. Axelrod, 145 A.D.2d 262, 538 N.Y.S.2d 103). We do, however, find merit in petitioner's contention that the fine against him as operator was incorrectly calculated. Th......

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