Mosher v. Dept. of Inspections and Appeals

• Decision Date: 13 November 2003
• Docket Number: No. 02-1115.,02-1115.
• Citation: 671 N.W.2d 501
• Parties: Tiffany MOSHER, Appellee, v. DEPARTMENT OF INSPECTIONS AND APPEALS, HEALTH FACILITIES DIVISION, Appellant.
• Court: Iowa Supreme Court

671 N.W.2d 501

Tiffany MOSHER, Appellee, v. DEPARTMENT OF INSPECTIONS AND APPEALS, HEALTH FACILITIES DIVISION, Appellant.

No. 02-1115.

Supreme Court of Iowa.

November 13, 2003.

Thomas J. Miller, Attorney General, and Jean Davis and Melissa Anne Biederman, Assistant Attorneys General, for appellant.

Timothy L. Gartin and Mark A. Teigland of Hastings & Gartin, LLP, Ames, for appellee. TERNUS, Justice.

The appellant, Department of Inspections and Appeals, found that the appellee, Tiffany Mosher, committed dependent adult abuse through the financial exploitation of an elderly person, J.B. See Iowa Code § 235B.2(5)(a)(1)(c) (1999). As a result of this administrative decision, Mosher was placed on the dependent adult abuse registry. See generally id. § 235B.5 (creating registry). Mosher successfully sought judicial review in the district court, which held in a thorough and considered decision that (1) the department incorrectly interpreted the term "dependent adult" as used in chapter 235B; and (2) the department's factual findings with respect to J.B.'s status as a "dependent adult" and Mosher's status as a "caretaker" during all relevant times were not supported by substantial evidence. The department appealed.

Upon our review of the record and the arguments of the parties, we agree with the ruling of the district court. Therefore, we affirm the district court's judgment reversing the agency decision and ordering the expungement of Mosher's name from the abuse registry.

I. Dependent Adult Abuse Statute.

We begin our discussion of this appeal with a brief review of the pertinent statute. Iowa Code chapter 235B provides that the Department of Human Services (DHS) shall establish and operate a dependent adult abuse services program, emphasizing "the reporting and evaluation of cases of abuse of a dependent adult." Id. § 235B.1. Even though DHS is responsible for receiving and evaluating dependent adult abuse reports and for establishing a central registry for such information, "the department of inspections and appeals is solely responsible for the evaluation and disposition of dependent adult abuse cases within health care facilities." Id. § 235B.3(1) (emphasis added).

Although dependent adult abuse can take many forms, the present case concerns only one, financial exploitation. That form of abuse is defined in chapter 2358 as follows:

5. a. "Dependent adult abuse" means:

(1) Any of the following as a result of the willful or negligent acts or omissions of a caretaker:

....

(c) Exploitation of a dependent adult which means the act or process of taking unfair advantage of a dependent adult or the adult's physical or financial resources for one's own personal or pecuniary profit, without the informed consent of the dependent adult, including theft, by the use of undue influence, harassment, duress, deception, false representation, or false pretense.

Id. § 235B.2(5)(a)(1)(c) (final two emphases added). A "caretaker" is defined in chapter 235B as

a related or nonrelated person who has the responsibility for the protection, care, or custody of a dependent adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court.

Id. § 235B.2(1). A "dependent adult" for purposes of this chapter is

a person eighteen years of age or older who is unable to protect the person's own interests or unable to adequately perform or obtain services necessary to meet essential human needs, as a result of a physical or mental condition which requires assistance from another, or as defined by departmental rule.

Id. § 235B.2(4). References to "department" in chapter 235B mean DHS. Id. § 235B.2(3). DHS has adopted a rule defining "dependent adult," but this rule is identical to the statutory definition. See Iowa Admin. Code r. 441-176.1. With this statutory framework in mind, we now review the events leading to the present appeal.

II. Background Facts.

In 1996 Tiffany Mosher was an administrator at a licensed nursing facility in Ames, Iowa. See generally Iowa Code ch. 135C (regulating the licensure of health care facilities). On June 6, 1996, J.B. and his wife of over fifty years were admitted to this establishment. At the time of their admission, J.B.'s wife was quite infirm, both mentally and physically, and J.B. was no longer able to care for her in their home. J.B., an eighty-three-year-old retired attorney, suffered from some chronic medical conditions, including atrial fibrillation, carotid vascular disease, and arthritis. He also had a history of laryngeal cancer. J.B. wore a condom catheter for occasional incontinence, but required no help with it. In addition, he used a cane, although he was able to ambulate without assistance from others.

J.B.'s medical conditions required that he take several medications on a daily basis. When J.B. initially came to the facility, he kept his medications in his room. Eventually, the facility staff volunteered to keep and dispense his medications for him, partly out of concern that other residents might have access to the medications. J.B. agreed to this suggestion and during the remainder of his time at the Ames facility, his medications were organized and dispensed by the facility staff.

The record shows J.B. was quite independent. Although he generally took his morning and evening meals at the facility, he usually spent the rest of the day outside of it, attending to his business and other interests. J.B. often went to Story City, Iowa, where he maintained an office in the mobile home in which he and his wife had resided. He transported himself in his own car.

J.B. was somewhat aloof from the other facility residents, finding he had little in common with them, socially or intellectually. Nonetheless, he routinely helped organize a periodic "men's stag" at the facility. With the exception of a former daughter-in-law and grandson, J.B. did not have a close relationship with his family, including his children and stepdaughter. Although J.B.'s wife died in March 1997, J.B. continued to reside at the Ames facility.

In January 1998, notwithstanding the facility's written policy prohibiting the solicitation or acceptance of gifts from residents, Mosher spoke with J.B. about a loan for $13,000. Mosher told J.B. that she needed the money to pay on her high-interest student loans. J.B. agreed to loan Mosher the money and drafted a promissory note to document a six-month loan at 9% interest. At some point, J.B. became aware that Mosher had used some of the loan proceeds to pay credit card debt. When the note became due, Mosher was only able to pay the interest due, so J.B. extended the note for another six months.

In August 1998 Mosher left the Ames facility and became employed at a similar establishment in Zearing, Iowa. She continued, however, to visit J.B. periodically. In November 1998 J.B. left the Ames nursing facility against medical advice and moved back to his home in Story City. (The record is unclear why J.B.'s departure was against medical advice.) After J.B. returned to his home, Mosher visited him weekly and then, as time went on, more frequently. Mosher ran errands for J.B., helped him with cleaning and sorting things in his home, and assisted J.B. in obtaining an emergency system for his home in case he fell and needed medical assistance. Around this time, Mosher introduced J.B. to a registered nurse, Selina Banda-Orman, who had also worked at the Ames care facility. J.B. employed Banda-Orman and also assisted her with her financial needs.

In January 1999 J.B. gifted the loan proceeds to Mosher and her husband by forgiving and canceling the promissory note. He structured this transaction as a gift to avoid unwanted tax consequences. Later that year J.B. started giving Mosher $700-$750 each month to pay on her student loans. Mosher received approximately $3600 before these payments ceased in January 2000. Bank records revealed that very little of this money actually went towards Mosher's student loans.

In November 1999 J.B. was admitted to Mill Pond Retirement Community, a licensed health care facility in Ankeny, Iowa. Shortly after his admission, J.B. gave Mosher a check for $18,500 to fund Mosher's purchase of a car. Within a month, J.B. transferred an additional $20,000 to Mosher to be used as a down payment on a house. In actuality, a portion of this money was spent on needs other than the purchase of a home.

In December 1999 J.B. left Mill Pond against medical advice and moved to an apartment in Des Moines with the help of Banda-Orman. Within a few hours, he fell, dislocating his hip, and was hospitalized in Ames. J.B. was treated for various conditions during his hospitalization, but was eventually discharged on January 6, 2000. Upon J.B.'s release from the hospital, he was admitted to a skilled nursing facility at Green Hills, Iowa. It was at about this same time that Mosher received the last $700 gift from J.B.

III. Underlying Proceedings.

On January 5, 2000, the Department of Inspections and Appeals (hereinafter "DIA" or "department") received a letter from Robert Huffer, J.B.'s attorney, indicating Huffer's concern that Tiffany Mosher was taking advantage of J.B. Department staff, in association with Tom Noonan, an assistant attorney general, undertook an investigation. Noonan spoke with Huffer and learned that he was aware of financial transactions between J.B. and Mosher that Huffer thought inconsistent with J.B.'s frugal and conservative nature. Huffer was worried that Mosher had somehow intimidated or threatened J.B. to induce payments of money.

On January 18, 2000, Noonan interviewed J.B. Although J.B. was "generally affable, patient, and cooperative" during the interview, he clearly resented the intrusion into his affairs. He confirmed the chronology of events reviewed above and acknowledged that Huffer believed that he — J.B. — was being "railroaded by a couple of ambitious women," but that...