Indiana State Bd. of Health Fac. v. Werner, 49A02-0505-CV-375.

CourtCourt of Appeals of Indiana
Citation841 N.E.2d 1196
Docket NumberNo. 49A02-0505-CV-375.,49A02-0505-CV-375.
PartiesINDIANA STATE BOARD OF HEALTH FACILITY ADMINISTRATORS, Appellant-Respondent, v. Angela WERNER, H.F.A., Appellee-Petitioner.
Decision Date10 February 2006

Steve Carter, Attorney General of Indiana, Elizabeth C. Rogers, Deputy Attorney General, Indianapolis, for Appellant.

J. Richard Kiefer, Darlene R. Seymour, Kiefer & McGoff, Indianapolis, for Appellee.


BARNES, Judge.

Case Summary

The Indiana State Board of Health Facility Administrators ("the Board") appeals the trial court's reversal of the Board's order suspending Angela Werner's health facility administrator license and requiring her to pay the costs of the proceedings. We affirm in part and reverse in part and remand.


The Board raises three issues, which we restate as:

I. whether the trial court had subject matter jurisdiction to review the Board's order;

II. whether the trial court properly concluded that Werner was entitled to relief; and

III. whether the trial court properly compelled the Board to adopt the sanctions recommended by the Administrative Law Judge ("ALJ").


From 1996 to 2000, Werner was a health facility administrator at Westpark Rehabilitation Center in Evansville. On September 24, 1999, a complaint was filed with the Indiana State Department of Health ("ISDH") regarding a September 21, 1999 incident between two residents at Westpark. Although two investigations found the complaint unsubstantiated, a third investigation led to the filing of a complaint against Werner by the Attorney General's Division of Consumer Protection ("the State").

The Board appointed an ALJ, who conducted hearings on January 27-31, 2003, and on June 9-12, 2003. On December 2, 2003, the ALJ issued her recommended findings of fact and conclusions of law, which provided in part:


13. At the hearing the State attempted to enter evidence regarding aspects of the Respondent's performance as an [health facility administrator] that are not included in the complaint.

14. The State is bound by what it alleged in the complaint; therefore only the allegations made in the complaint can be considered in deciding whether any action should be taken against Respondent's license in this matter.

15. While the State's complaint against Respondent references 9 residents the State presented substantial evidence on only two residents — JM and Helen Straukamp.

16. On September 21, 1999, Helen Straukamp, a female resident at Westpark who had dementia was standing in the hallway.

17. JM, a male resident at Westpark, came up behind Straukamp and was cursing.

18. JM faced Straukamp and pushed her into a wall.

19. Straukamp fell back and hit her head on the wall. She then fell to the floor.

20. The injuries Straukamp suffered during this incident with JM led to her death a few weeks later.

21. This September 21, 1999 incident prompted the three complaints filed with the ISDH and the three resulting complaint surveys.

22. JM was a resident of Westpark from October 15, 1993 until December 13, 1999.

23. Prior to his admission at Westpark, JM had a history of physical violence including a murder conviction.

24. The history was not a part of JM's chart on file at the nurses' station and was unknown to Respondent until after the September 21, 1999 incident.

25. JM was admitted to Westpark with a diagnosis of organic brain syndrome.

26. Throughout his stay at Westpark, JM had numerous incidents of verbal aggression against staff and other residents. These incidents ranged from cursing and yelling to threats of physical violence. These verbal outbursts did not occur consistently. JM sometimes went for months without verbal incident. These threats were frightening to some staff, but not to others.

27. Between the time Respondent came to Westpark and September 21, 1999, JM was involved in three incidents of physical aggression.

1. On November 15, 1996, JM hit another resident and orally threatened a social services employee.

2. On November 29, 1996, JM threatened and knocked down another resident. This fall resulted in a hip fracture for the other resident.

3. On October 28, 1997, another resident slapped JM. JM attempted to choke that resident. The other resident pushed JM back and JM fell and broke his hip.

28. After the November 29, 1996 incident JM's medications were adjusted by psychiatrist Dr. Norum. JM did not experience another incident of physical aggression until October 28, 1997. JM did not initiate the October 28, 1997 incident.

29. There are some inconsistencies in the recommendations from psychiatric professionals regarding whether JM should be transferred to a different kind of facility; however, there does seem to be agreement that JM needed a more structured environment.

30. In January, 1997, JM was seen by a psychiatric consultant who stated in his report that JM was "stubborn, irritable and easily angered . . . episodically combative and unpredictable" and recommended that JM be transferred to a more appropriate facility which is "more structured and can provide him with a behavior modification program to restructure his behavior".

31. In July, 1997, Dr. Norum, psychiatrist, stated, "JM is an accident looking for a place to happen." He suggested emergency detention in a locked unit.

32. In August, 1997, Dr. Norum stated that JM's mood was very stable with the medication depakote.

33. Dr. Norum saw JM in early October, 1997 and stated that he was stable and that his current medications should be continued.

34. After the October 28, 1997, incident Dr. Vance did extensive psychological testing on JM and determined that he did not need to be placed in a behavioral unit at that time. He did recommend that JM be controlled through behavior programming and by maintaining a highly structured day.

35. Behavioral units at long term care facilities are designed to provide a highly structured and secure environment for residents whose diagnoses and behavior warrant it.

36. Westpark does not have a behavioral unit.

37. From October 28, 1997 until September 21, 1999 JM had no more incidents of physical aggression. He did have numerous incidents of verbal aggression and threats.

38. After the September 21, 1999 incident JM was put on one-to-one monitoring until he was sent that same day to the psychiatric unit at Gibson County General Hospital (Gibson Central) for observation.

39. JM stayed at Gibson General until September 30, 1999 when he was sent back to Westpark.

40. JM's room was moved closer to the nurse's station and the smoking room when he returned from Gibson General. JM liked to smoke in the smoking room. Removing him from a potentially volatile situation by convincing him to go to the smoking room was sometimes a successful de-escalation tool for JM.

41. The facility has several approaches to prevent JM from engaging in physical or verbal aggression or to redirect JM during these incidents. Most of the interventions involved calming JM down, extricating him from a given situation and redirecting him to other activities which would be calming to him.

42. These interventions remained for the most part unchanged during Respondent's tenure at Westpark. These interventions were sometimes successful in calming JM down and preventing further aggression, but they did not always work.

43. Verbal aggression, threats, and unwanted touching are not uncommon in dementia patients. They cannot always be predicted or prevented.

44. Based on the recommendations of the psychiatric consultant and Drs. Norum and Vance and the fact that the behavioral interventions were not entirely successful, Westpark's social services department should have set up a more structured behavior management program for JM.

45. Respondent was aware of the four incidents of physical aggression involving JM which occurred during her time at Westpark at the time they happened.

46. While she may not have been aware of all the incidents of verbal aggression, Respondent knew that JM had numerous incidents of verbal aggression and threats while she was Westpark's administrator.

47. Twice during her employment at Westpark, Janice Maxey, one of the Social Services Directors employed at Westpark during Respondent's tenure, attempted to involuntarily transfer JM because of his aggressive behavior.

48. After a verbal outburst by JM of July 30, 1997, Judy Dockery, the local ombudsman was contacted. Ms. Dockery told Ms. Maxey and Respondent that she would block an involuntarily transfer of JM. She made some superficial suggestions for decreasing JM's aggression.

49. Respondent believed at the time that as ombudsman Ms. Dockery had the authority to prevent an involuntarily transfer of a long term care resident. Based on this understanding about Ms. Dockery's authority, Respondent cancelled JM's involuntary transfer.

50. Ombudsmen do not have any authority to prevent involuntary transfers of long term care facility residents.

51. As Westpark's administrator Respondent should have known that ombudsmen do not have the authority to prevent involuntary transfers.

52. Soon after the September 21, 1999 incident, Robbie Jo Franklin, Westpark's Director of Nursing and Karen Langston, Social Service's Director at the time, made several attempts to find alternative placement for JM. They tried behavioral units in Vanderburgh County where Westpark is located. Because JM was a veteran they tried several VA centers in Indiana and in several surrounding states. They were unable to find a facility that would take JM.

53. On September 30, 1999, Karen Langston sent a referral on JM to Southwest Indiana Mental Health Center to determine whether he would be eligible for a mental health facility. It was determined that, because of his diagnosis of organic brain syndrome, he would not benefit from mental health therapy; therefore was not eligible for treatment at a mental health...

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