K.M.T. v. Department of Health and Rehabilitative Services

• Decision Date: 22 October 1992
• Docket Number: No. 91-2622,91-2622
• Parties: 17 Fla. L. Weekly D2463 K.M.T., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 865

608 So.2d 865

17 Fla. L. Weekly D2463

K.M.T., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 91-2622.

District Court of Appeal of Florida First District.

Oct. 22, 1992.

Neil H. Butler, Tallahassee, for appellant.

John R. Perry, Asst. District Legal Counsel, Dept. of Health and Rehabilitative Services, Dist. 2, Tallahassee, for appellee.

PER CURIAM.

K.M.T. appeals a final order of the Department of Health and Rehabilitative Services (HRS) denying her motion to expunge her name from the elderly abuse registry. She contends that the order must be reversed because the 1989 version of the Adult Protective Services Act (the Act), sections 415.101-415.113, Florida Statutes (1989), under which she was found to be a perpetrator of neglect, violates federal and state constitutional due process requirements. Alternatively, she contends that the order must be reversed because the hearing officer misconstrued the requirements of the Act with regard to what constitutes neglect under section 415.102(13), Florida Statutes (1989), and, as a result, held HRS to an incorrect burden of proof.

We reverse for the following reasons. Classifying the report against Appellant as "confirmed," which resulted in the termination of her employment, before giving her notice and an opportunity to be heard on the matter, constituted a denial of procedural due process. Moreover, the department failed to prove neglect on the part of Appellant.

I.

The final order was predicated on the following findings of fact made by the hearing officer. K.M.T. was employed as a certified nursing assistant (CNA) by Centerville Care Center (Centerville) to perform services in its nursing home, and her employment extended from May 1989 through February 1990. During this period, her superiors rated her "above average." Prior to working for Centerville, K.M.T. had worked in other nursing homes for approximately 12 years. Her regular duties as a CNA at Centerville consisted of providing basic care for the nursing home patients, including assisting them with their activities of daily living, such as feeding, bathing, dressing, and ambulation. Appellant's rotating duties also included assisting in the restorative dining room.

Restorative dining is a program at Centerville in which patients who have partially or completely lost the ability to feed themselves, or who may need careful observation due to swallowing problems, may be closely observed and re-taught feeding skills. A rehabilitation and restorative assistant (RRA) is assigned to the evening meal in the restorative dining room, and is assisted by two CNA's who serve on a rotational basis.

On February 9, 1990, K.M.T. and Willie Radder were the CNA's and Frances Whittaker was the RRA assigned to the restorative dining room. Whittaker, Radder, and K.M.T. had each been assigned to the restorative dining room before and were familiar with its purpose, procedures, and atmosphere. The standard operating procedure of the dining room was as follows. Patients usually were assisted by CNA's from their respective patient care areas into the dining room while members of the kitchen staff brought in the food cart. Patients who could feed themselves were served first, after which the RRA and CNA's served the other patients and assisted in feeding them. Patients who could do so were permitted to return to their rooms by themselves. Many patients, however, required assistance, which was provided by the CNA's assigned to the dining room. One CNA would take a patient to his or her room and return immediately, while the other CNA remained in the dining room with the other patients. There was no established schedule for the return of patients to their rooms, and the CNA available at a given time assisted the returning patient. If two CNA's were needed to escort a patient, the RRA was still available to care for the patients remaining in the dining room, but all three staff members should not simultaneously be away from the restorative dining room so long as any patients remained there. The RRA and CNA's were responsible for removing the trays and returning the food cart to the kitchen, and for sweeping or blotting up the floor after the last patient left the restorative dining room. All activities were intentionally staggered so that patients would not be left alone. Centerville never committed this policy to writing, but Whittaker, Radder, and K.M.T. understood that at least one staff member should be present in the restorative dining room at all times when a patient was there.

On February 9, 1990, Whittaker, the RRA assigned to the restorative dining room, clocked out of Centerville at 6:30 p.m., having received prior permission from her superior, the Director of Nursing, to leave early. Before leaving, she informed Radder and K.M.T. that they would have to supervise the patients in the dining room without her. At this point, three patients remained in the dining room. One of these patients, L.B., could walk only 10 to 15 feet with a walker and human assistance, could not carry on a coherent conversation, and functionally was wheelchair bound. Radder took another patient back to her room, leaving K.M.T. alone in the dining room with L.B. and the remaining patient. Radder's return to the dining room was delayed several minutes because she was asked to assist with some other patients. When she returned, she observed that the remaining two patients were unattended. One was still properly seated at a table, but L.B. was lying on the floor trying to get up. Help was summoned and medical attention was given to L.B., who did not suffer any substantial physical harm. K.M.T. was paged two or three times before she appeared in the dining room. Approximately 3 to 5 minutes elapsed from the time Radder returned to the dining room until K.M.T. reappeared. K.M.T. testified that, in the absence of both Whittaker and Radder, she voluntarily left L.B. and the other patient alone in the dining room to return the trays and food cart to the kitchen. When she returned, both patients were still alone but all right. K.M.T. then left the dining room and advised the chief nursing assistant and some CNA's she thought were going to get both patients that she was finished in the restorative dining room; she stated that she needed to put some power steering fluid in her car and would be gone only a few minutes. K.M.T. then went to the parking lot and put the fluid in her car. She returned approximately 8 to 10 minutes later, heard the page for her, and learned that L.B. had fallen in the restorative dining room.

HRS investigated this February 9 incident and classified it under the 1989 version of Chapter 415, the Adult Protective Services Act. On March 10, 1990, HRS closed its investigation, confirmed that K.M.T. was a perpetrator of neglect of an aged person (L.B.), and placed K.M.T.'s name on the central abuse registry. Centerville reacted by firing K.M.T. K.M.T.'s request that HRS expunge the report was denied. K.M.T. then filed a request for a section 120.57 administrative hearing, and a hearing was held on March 18, 1991.

In the conclusions of law, the hearing officer rejected K.M.T.'s attack on the constitutionality of chapter 415, Florida Statutes (1989), because such issues are within the exclusive jurisdiction of courts established under Article V of the Florida Constitution. She found that HRS had proved by a preponderance of the evidence that K.M.T. was a perpetrator of "neglect," as defined in section 415.102(13), Florida Statutes (1989), and recommended that K.M.T.'s request for expunction be denied. The Secretary of HRS rejected K.M.T.'s exceptions to the recommended order and entered a final order denying K.M.T.'s request for expunction, adopting without change the findings of fact and conclusions of law in the recommended order.

II.

K.M.T. argues that the 1989 version of the Act is unconstitutional because it denies due process to those persons accused of abuse or neglect of an aged person or disabled adult. According to K.M.T.'s argument, the procedure set out in the Act as it read in 1989 involves: (1) accusation, (2) investigation, (3) conviction and imposition of the penalty, and then (4) the trial. K.M.T. argues that because "conviction and imposition of the penalty" occur prior to trial, this procedure amounts to an unconstitutional deprivation of due process.

The United States Supreme Court has described the right to pursue one's chosen career as a liberty interest protected by the Due Process Clause. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923) ("liberty" denotes the freedom to engage in any of the occupations of life). The Florida Supreme Court has described this right as both a property interest and a liberty interest protected by the Due Process Clause. See State v. Ives, 123 Fla. 401, 167 So. 394, 399 (1936) ("[T]he truth must not be ignored that a citizen's right to pursue any lawful business is 'property' and the right to contract for personal services as a means for the acquisition of property is one of the privileges of a citizen of the United States of which he cannot be deprived without invading his right of liberty."). These cases make clear that the Due Process Clause protects K.M.T.'s interest in pursuing her career as a CNA in the geriatric health care field.

K.M.T. argues that HRS deprived her of this protected interest without due process by classifying the report that she was a perpetrator of neglect as "confirmed" and immediately placing her name in the central abuse registry before affording her a hearing. She argues that as a result of HRS's confirmation of the report and placement of her name in the abuse registry, Centerville terminated her employment. HRS responds that its compliance with its statutory duty under section 415.103(3), Florida Statutes (1989), to classify the report as "confirmed" and report its...