In re Schultz
| Decision Date | 31 July 2003 |
| Docket Number | No. 21116-9-III.,21116-9-III. |
| Parties | In re: ROSE SCHULTZ, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Spokane County, Docket No: 01-2-00942-1, Judgment or order under review, Date filed: 04/12/2002.
Rose M. Schultz (Appearing Pro Se), Spokane, WA, Counsel for Appellant(s).
Pamela Vogt Reuland, Attorney at Law, Offc of Attorney General, Spokane, WA, Counsel for Respondent(s).
After an investigation of several complaints about her adult family home, the Department of Social and Health Services found that Rose Schultz failed to comply with the minimum licensing standards for the home, and ultimately revoked her license to operate the home. Ms. Schultz appealed the two administrative decisions that upheld the license revocation, and here she appeals the superior court's decision that affirms those decisions. We affirm.
Rose Schultz received her license to operate an adult family home in Spokane, Washington, in July 1989. In early May 1998, the Department of Social and Health Services (the Department) received three complaints regarding Ms. Schultz's home. The first complaint alleged that Ms. Schultz restricted visiting hours, failed to provide supervision for the residents at night, and authorized a resident's hair cut against the resident's will. The second complaint alleged that Ms. Schultz denied the residents their rights by forcing them to comply with a strict schedule, and by denying them choice in their clothing and personal hygiene. The complaint also alleged that Ms. Schultz washed the residents' faces with a shower hose, she provided inadequate assistance for the residents to use the bathroom, she provided inadequate supervision at night, the visiting hours were restricted, and the residents were not given free access to the telephone. In the third complaint, the Department alleged that Ms. Schultz was physically and emotionally abusive to the residents, and she denied the residents several rights.
The case was assigned to Alice Mahar, a complaint investigator. Ms. Mahar conducted an unannounced visit to the home on May 8, 1998, to investigate the complaints. During the investigation, Ms. Mahar interviewed the two current residents, along with a recently discharged resident. She also interviewed several relatives of the residents. Ms. Mahar's detailed findings were reported in a eight-page document entitled `Statement of Deficiencies,' dated May 13, 1998. Clerk's Papers (CP) at 110-16.
In the Statement of Deficiencies, Ms. Mahar detailed complaints from the former and current residents related to physical, mental, and verbal abuse. For example, Ms. Mahar documented one resident's account of a situation in which Ms. Schultz roughly grabbed and violently shook the resident, while yelling at her. In another incident that occurred in the presence of Ms. Mahar, a resident wanted to stop the treadmill she was on because she was in pain. Ms. Schultz refused to assist the resident, and did not turn off the treadmill until approximately five minutes later. Additionally, several of the residents and their families and friends complained that Ms. Schultz required conformance to a strict schedule that severely limited visitations and telephone calls to the residents.
Ms. Mahar also reported that Ms. Schultz neglected the residents, which contributed to their respective deterioration in condition. For example, the residents reported that Ms. Schultz refused to assist them with using the bathroom. In one incident, a resident who had undergone a bowel resection within the month, was refused assistance by Ms. Schultz in using the bathroom. The resident was made to wait for an hour, which resulted in the resident's incontinence.
Also, during one incident, a resident experienced congestive heart failure in the middle of the night, and the residents were unable to get a response from Ms. Schultz for a long period of time. The residents stated that Ms. Schultz told them that she "did not get paid to take care of people at night" and that they were not to call her at night. CP at 113.
Ms. Mahar also relates how the current residents and the discharged resident were denied reasonable access to visitors and the telephone. Ms. Schultz would not allow visitors unless they had called first, and she would only allow visitors during certain restricted time periods. One of the residents reported she was not allowed to telephone her daughter upon request. Ms. Schultz told her that her daughter would call her, if her daughter wanted to speak with her.
The Department's Residential Care Services issued a summary suspension and revocation of Rose Schultz's license to operate an adult family home, effective May 13, 1998.
After a lengthy hearing, an administrative law judge issued a 23-page Initial Decision upholding the revocation and summary suspension. In that decision, the court made 62 findings of fact, many of which related to the reports found in Ms. Mahar's Statement of Deficiencies.
The court concluded that Ms. Schultz violated the following provisions:
1. WAC 388-76-600(1) requiring the provider to comply with all the requirements of chapter 70.129 RCW related to respecting the resident's individual integrity, and treating a resident in such a manner that does not allow choice, independence, or personal integrity.
2. WAC 388-76-600(8) requiring the provider to ensure that a resident is free from abuse, neglect, and abandonment. Ms. Schultz violated this section by failing to assist residents with their bathroom needs, and by failing to be available to the residents at night.
3. RCW 70.129.080 and WAC 388-76-600(4) requiring the residents have reasonable access to the use of a telephone where calls can be made without being overheard.
4. RCW 70.129.090 requiring that residents have reasonable access to visitation.
5. WAC 388-76-615(2)(a), (b) and WAC 388-76-615(4)(a), (c) requiring the provider to ensure that a resident's negotiated service plan is designed to meet the resident's needs and requiring review and revision of the plan as needed. Ms. Schultz failed to update the service plan of one of her residents to reflect a program she instituted in response to a resident's oppositional behavior.
6. WAC 388-76-665 requiring all resident records have current medical histories. Ms. Schultz did not have a current medical history for any of the residents in her home.
The Initial Decision concluded that the summary suspension and stop placement orders were correctly ordered because Ms. Schultz failed to provide adequate supervision for the residents at night and had no system in place for the residents to contact her during that time. As a result, the court found that these failures demonstrated a threat to the public health, safety and welfare, which justified immediate action. Ms. Schultz appealed.
On appeal, Ms. Schultz challenged several of the factual findings, contending that (1) the findings were wrong based upon the record; (2) the findings were based upon inadmissible hearsay evidence; and (3) the findings were based upon testimony from witnesses who were not credible.
The subsequent Review Decision and Final Order dated January 17, 2001, made some minor adjustments to the factual findings, and adopted the remaining findings outlined in the Initial Decision. Ultimately, the Final Order affirmed the Initial Decision and held that the Department proved by a preponderance of the evidence that Ms. Schultz failed to comply with minimum licensing requirements for an adult family home.
Ms. Schultz appealed to the superior court. She contended that the administrative law judge erred in admitting and relying upon inadmissible hearsay, and that she was denied due process as a result of the admission of this hearsay, as well as prior unsubstantiated complaints. She also contended that the findings were not supported by substantial evidence.
On April 12, 2002, the superior court issued an order affirming the administrative decision and incorporating the memorandum opinion filed February 19, 2002, which upheld the Department's license revocation. The court found that the decision of the administrative law judge should be upheld because the findings were supported by substantial evidence. The court also found the revocation of Ms. Schultz's license was not arbitrary or capricious because ample evidence existed to warrant a concern over the safety of the residents in the home. Ms. Schultz appeals.
Ms. Schultz argues that the Department's determination to revoke her license to operate an adult family home was arbitrary and capricious, clearly erroneous, and violated her due process rights. Ms. Schultz's appellate briefs fail to conform to many of the rules governing appellate briefs.
`Judicial review of a final administrative decision is governed by RCW 34.05.570(3).' Ludeman v. Dep't of Health, 89 Wn. App. 751, 755, 951 P.2d 266 (1997) (citing Callecod v. Wash. State Patrol, 84 Wn. App. 663, 670, 929 P.2d 510 (1997)). In reviewing an administrative decision, this court stands in the same position as the superior court. Ludeman, 89 Wn. App. at 755. We review conclusions of law de novo under an error of law standard. Williams-Batchelder v. Quasim, 103 Wn. App. 8, 13, 19 P.3d 421 (2000).
An agency order will be overturned where the agency has erroneously interpreted or applied the law, the order is not supported by substantial evidence, or the order is arbitrary and capricious. Ludeman, 89 Wn. App. at 755. Under the error of law standard, substantial weight is given to the agency's interpretation of the law, but this court may substitute its judgment for that of the agency. We defer to the agency's interpretation of the law only where...
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