Miller v. DeBuono

• Decision Date: 04 December 1997
• Citation: 689 N.E.2d 518,666 N.Y.S.2d 548,90 N.Y.2d 783
• Parties: , 689 N.E.2d 518, 1997 N.Y. Slip Op. 10,226 In the Matter of Patricia MILLER, Respondent, v. Barbara A. DeBUONO, as Commissioner of Health of the State of New York, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 548

666 N.Y.S.2d 548

90 N.Y.2d 783, 689 N.E.2d 518, 1997

N.Y. Slip Op. 10,226

In the Matter of Patricia MILLER, Respondent, v. Barbara A. DeBUONO, as Commissioner of Health of the State of New York, et al., Appellants.

Court of Appeals of New York.

Dec. 4, 1997.

Dennis C. Vacco, Attorney General, New York City (Barbara K. Hathaway, Barbara G. Billet and Michael Belohlavek, of counsel), for appellants.

Vladeck, Waldman, Elias & Engelhard, P.C., New York City (Karen Honeycutt, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

On November 7, 1991, the New York State Commissioner of Health received a report that petitioner Patricia Miller, a certified nurse aide employed at the Greenpark Care Center in Brooklyn, had abused a patient in her care. Specifically, the report alleged that petitioner had "hit [a] patient in her right eye causing her to sustain a bruise." Following an investigation, the Commissioner decided that sufficient credible evidence existed to support the allegation of patient abuse and, on March 20, 1992, issued a written determination to that effect. Petitioner subsequently was notified of that determination and informed that she had the right to contest the accuracy of the findings and request an administrative fair hearing. Petitioner also was advised that unless the written determination was expunged, the finding of abuse would be forwarded to the agency responsible for maintaining the New York State Nursing Home Nurse Aide Registry, and made available for public disclosure after issuance of the Commissioner's final order.

Pursuant to Public Health Law § 2803-d(6)(d), petitioner requested a fair hearing, challenging the Commissioner's written determination. At the conclusion of the hearing, at which the patient and petitioner both testified, the Administrative Law Judge (ALJ) recommended that the Commissioner's written determination of patient abuse be annulled and the record expunged. In finding that the determination was "not supported by the evidence," the ALJ noted that, although petitioner's hand may have come in contact with the patient's eye, there was no evidence that petitioner intended "to hit or punch or otherwise knowingly [do] what she is charged with doing, that is to hit the patient."

The Commissioner rejected the ALJ's proposed findings and conclusion, made contrary findings and sustained the charge of patient abuse against petitioner. On December 2, 1994, the Commissioner's determination was forwarded to the office of Health Systems Management for placement in the Registry. Thereafter, as mandated by 10 NYCRR 415.4(b)(1)(ii)(b ) (adopted eff. Apr. 1, 1992), the Greenpark Care Center terminated petitioner's employment.

Petitioner then instituted this hybrid CPLR article 78 proceeding and declaratory judgment action objecting to the Commissioner's alleged retroactive enforcement of the regulatory provision (as applied to her conduct predating the regulation) prohibiting future employment once a finding of abuse has been entered into the Nurse Aide Registry. In addition, petitioner challenged the Commissioner's written determination as an abuse of discretion, and not in accordance with substantial evidence. Petitioner also sought a declaration that 10 NYCRR 415.4(b)(1)(ii)(b ) violated her due process rights U.S. Const. 14th Amend.) by requiring her termination upon the entry of a finding of patient abuse in the Registry supported merely by substantial evidence, and further deprived her of equal protection under law (id.) since, under this regulation, certified nurse aides are treated differently from licensed health care professionals.

On transfer from Supreme Court, the Appellate Division confirmed the Commissioner's written determination of patient abuse, finding that it was supported by substantial evidence. Nonetheless, deeming the regulations to have been "retroactively" applied to petitioner, that Court annulled, on the law, so much of the administrative action as prohibited petitioner from employment as a nurse aide, ruling essentially that placement on the Registry was the only legal sanction for her alleged misconduct at the time it was committed (235 A.D.2d 480, 652 N.Y.S.2d 313). We granted respondents, officials of the State Department of Health, leave to appeal.

We conclude that the regulation was not improperly applied retroactively to petitioner. Instead of directing a reversal, however, we now modify the Appellate Division order and remit to the Commissioner of Health for a new determination on the existing record using a constitutionally required preponderance of the evidence standard of proof. ^*

I

Public Health Law § 2803-d requires administrators, physicians and health care professionals, and permits other concerned individuals, to report suspected incidents of abuse or neglect if they "have reasonable cause to believe" that a patient of a residential health care facility had been physically abused, mistreated or neglected by the staff of such facility (Public Health Law § 2803-d[1], [2] ). The statute empowers the Commissioner, upon receipt of such a report, to investigate the allegations of patient abuse and, based upon the findings of the investigation, to issue a written determination of whether or not sufficient credible evidence exists to sustain the allegations (see, Public Health Law § 2803-d[6][a]; 10 NYCRR 81.5; see also, Governor's Mem. approving L.1980, ch. 340, 1980 McKinney's Session Laws of N.Y., at 1865; Mem. of Dept. of Health, 1980 N.Y. Legis. Ann., at 141).

If the Commissioner sustains the allegations, the subject of the investigation may, within 30 days of notification, request that the record be amended or expunged (Public Health Law § 2803-d[6][d] ). If the Commissioner does not comply with such a request, the subject may pursue an administrative fair hearing and seek expungement on the grounds that the record is inaccurate or the written determination is not supported by the evidence (id.; see also, 10 NYCRR 81.6[b] ). At the fair hearing, the burden of proof is on the Department of Health (Public Health Law § 2803-d[6][d] ) and, as the statute sets forth no specific evidentiary standard, the hearing is governed by the State Administrative Procedure Act which provides:

"[n]o decision, determination or order shall be made except upon consideration of the record as a whole * * * and as supported by and in accordance with substantial evidence " (State Administrative Procedure Act § 306[1] [emphasis supplied] ).

If the prior determination is upheld, the Commissioner shall, in addition to other penalties prescribed by law, report the finding to the Nurse Aide Registry (see, Public Health Law § 2803-d[6][g]; [7]; § 2803-j[3][d]; see also, 42 U.S.C. § 1396r[e][2] [requiring States to establish and maintain a Nurse Aide Registry]; 42 U.S.C. § 1396r[g][1][C] [requiring States to report findings of abuse, neglect or misappropriation to the State Nurse Aide Registry]; 42 CFR 488.335).

As previously noted, effective April 1, 1992, the State Department of Health promulgated a new regulation for residential care facilities Statewide which specifically prohibits nursing homes from employing nurse aides "who have * * * had a finding entered into the New York State Nurse Aide Registry concerning abuse, neglect or mistreatment of residents or misappropriation of their property" (10 NYCRR 415.4[b][1][ii][b] ). The Department's regulation, issued to satisfy Medicaid and Medicare participation requirements (see, 42 CFR 442.100, 430.10), corresponds to a Federal directive promulgated by the Secretary of Health and Human Services which also prohibits the employment of nurse aides under identical circumstances (see, 42 CFR 483.13[c][1][ii][B] [eff. Apr. 1, 1992]; see also, 56 Fed Reg 48914 [1991] [stating that it "would be irresponsible * * * to allow nurse aides who have abused or neglected residents * * * to have the opportunity to jeopardize resident safety again"] ).

II

We agree with the position of respondents, on their appeal, that the Appellate Division erred in annulling petitioner's discharge on the ground that it resulted from an improper retroactive application of 10 NYCRR 415.4 to conduct which allegedly occurred prior to the adoption of that provision.

In Forti v. New York State Ethics Comm., 75 N.Y.2d 596, 555 N.Y.S.2d 235, 554 N.E.2d 876, this Court stated that " '[a] statute is not retroactive * * * when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events ' " (id., at 609, 555 N.Y.S.2d 235, 554 N.E.2d 876 [quoting McKinney's Cons. Laws of N.Y., Book 1, Statutes § 51, at 87] [emphasis supplied] ). We held in Forti that where the requirements for engaging in specified professional activity are changed to govern future professional eligibility, a statute does not operate " 'retroactive[ly]' in any true sense" even though its application may be triggered by an event which occurred prior to its effective date (see, id., at 609-610, 555 N.Y.S.2d 235, 554 N.E.2d 876; see also, Matter of Abrams v. Brady, 77 N.Y.2d 741, 750-751, 570 N.Y.S.2d 468, 573 N.E.2d 556; Matter of Allied Grocers Coop. v. Tax Appeals Tribunal, 162 A.D.2d 791, 792-793, 557 N.Y.S.2d 707).

Critical to our determination in Forti was that the newly enacted restriction was not intended as punishment for past conduct; rather, the enhanced limitation applied only to then-future transactions notwithstanding that prior conduct might affect, prospectively, those transactions (see, Forti v. New York State Ethics Comm., supra, at 609-611, 555 N.Y.S.2d 235, 554 N.E.2d 876; Matter of Allied Grocers Coop. v. Tax Appeals Tribunal, 162 A.D.2d, at 792-793, 557 N.Y.S.2d 707, supra; Matter of Springer v. Whalen, 68 A.D.2d 1011, 1012, 415 N.Y.S.2d 106, lv. denied 47 N.Y.2d 710, 419 N.Y.S.2d 1027, 393 N.E.2d 1050).

The rationale of Forti governs the issue of retroactivity here. Public...