Raven v. Dep't of Soc.

• Decision Date: 18 July 2013
• Docket Number: No. 87483–2.,87483–2.
• Parties: Resa RAVEN, Petitioner, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
• Court: Washington Supreme Court

177 Wash.2d 804

306 P.3d 920

Resa RAVEN, Petitioner,

v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 87483–2.

Supreme Court of Washington, En Banc.

July 18, 2013.

Jeff B. Crollard, Crollard Law Office, PLLC, Seattle, WA, for Petitioner.

Catherine Roubal Hoover, Attorney General of Washington, Olympia, WA, for Respondent.

Susan L. Kas, Disability Rights Washington, Seattle, WA, Regan Bailey, Disability Rights Washington, Seattle, WA, for Amicus Curiae on behalf of Disability Rights Washington DR.

Carol S. Vaughn, Thompson & Howle Downtown Office, Karen Marie Thompson, Thompson & Howle, Seattle, WA, Amicus Curiae on behalf of Washington Association of Profes, WA Assoc of Professional Guardia.

Michael L. Olver, Christopher C. Lee, Kameron Lee Kirkevold, Helsell Fetterman LLP, Seattle, WA, Amicus Curiae on behalf of Wa Academy of Elder Law Attorney.

Regan Bailey, Disability Rights Washington, Seattle, WA, Amicus Curiae on behalf of Arc of Washington, Long Term Care Ombudsman Program.

STEPHENS, J.

[177 Wash.2d 809]¶ 1 The Department of Social and Health Services (DSHS) made a finding of neglect against guardian Resa Raven based on events that took place during Raven's guardianship of Ida, an elderly incapacitated person.¹ Raven challenges this finding, which the Court of Appeals affirmed. Raven v. Dep't of Soc. & Health Servs., 167 Wash.App. 446, 273 P.3d 1017 (2012). We reverse the Court of Appeals and hold that a guardian's good-faith determination that her ward opposes nursing home placement cannot be the basis for a finding of neglect in light of the legislature's clear mandate against placing incapacitated persons against their will. We further hold that substantial evidence does not support the conclusion that Raven's conduct otherwise met the statutory definition of neglect. Finally, although the evidence does not support a finding of neglect against Raven, DSHS's actions were substantially justified, and we therefore deny Raven's request for attorney fees under the equal access to justice act (EAJA), RCW 4.84.350(1).

FACTS AND PROCEDURAL HISTORY

¶ 2 Ida became bedbound in 1996, at the age of 75, after a fall fractured a bone in her knee. Ida suffered from several serious and debilitating ailments, including muscle contractures that locked her legs in a splayed position, incontinence, rheumatoid arthritis, dementia, and hallucinations. She experienced severe and chronic pain. An adult protective services (APS) report in 2001 found that Ida, a retired nurse, had a “ ‘long history and lifestyle pattern of independence and reliance on naturopathic and alternative medicine.’ ” Administrative Record (AR) at 104–05 (Review Decision and Final Order of DSHS, Finding of Fact 20) (quoting Ex. 67, at 1).² After her fall, this pattern continued. Ida was resistant to medical care and was combative, violent, hostile, and uncooperative with her caregivers, including her husband Richard, her daughter Cheryl, and caregivers from Catholic Community Services (CCS). Her history between 1996 and 2004 is rife with episodes of self-neglect, problems with her caregivers, and medical crises.

¶ 3 A significant area of medical concern for Ida after becoming bedbound was pressure sores. Pressure sores (also variously known as skin breakdowns, pressure wounds, pressure ulcers, or bedsores) occur when a bony protrusion under an individual's skin (for example, the tailbone) has prolonged contact with a surface. Frequent repositioning of a bedbound individual is required. Pressure sores are exacerbated by lack of timely personal hygiene such as infrequent cleansing after bowel movements or urination. Left untreated, bedsores can become severe and life-threatening.

[177 Wash.2d 811]¶ 4 In 2004, at the age of 83, Ida was adjudicated incapacitated. Raven, a licensed mental health counselor and a certified professional guardian, was appointed Ida's limited guardian of person in March 2004. Ida was Raven's first ward. As a Medicaid dependent, Ida had very little income, and Raven was allowed fees of up to $175 per month for her services as a guardian. See AR at 111 (Finding of Fact 38).³ Raven spent time after her appointment as guardian familiarizing herself with Ida's history and medical situation. Based on her review of Ida's history and conversations with Ida's family, Raven determined that Ida, when competent, consistently refused to be placed in a nursing home or other long-term care facility. Accordingly, Raven consented to a plan of care on Ida's behalf that kept Ida in her home.

¶ 5 When Raven assumed the guardianship, Ida's personal care continued to be provided by CCS, which contracted with DSHS through DSHS's agent, Thurston County Area Agency on Aging (AAA). AAA provided case management. When Raven was appointed, Ida had no primary care physician, and Raven began working to resolve this issue. It was difficult to find a physician for Ida given her combative history, her lack of ambulation, and her financial resources.⁴ In August 2005, Raven convened a care conference to discuss several issues, foremost of which was the lack of a primary care physician. Shortly after the conference, Ida was taken to an emergency room due to bedsores, leg pain, and the need for a doctor. As part of the hospital's discharge plan, Ida was paired with a team from Assured Home Health and Hospice (Assured), which included a physician.

[177 Wash.2d 812]¶ 6 In November 2005, Assured convened a care conference to address the reemergence of Ida's pressure sores, which Assured felt were caused in part by CCS's caregivers not turning Ida enough. Ida was resistant to repositioning because it caused her pain, which in turn led to reluctance on the part of her caregivers to turn her. All of Ida's plans of care called for repositioning every two hours, but due to staffing shortages, this was not an attainable goal, particularly because Ida needed two people to turn her. Assured also had concerns, shared by Raven, that Richard, Ida's husband, was not consistently administering Ida's pain medication, which exacerbated the difficulty staff had in repositioning Ida. Raven decided that any remedial steps should wait until after the holidays, reasoning that the holidays would be stressful enough for the family without additional disruptions to Ida's care.

¶ 7 At a follow-up conference in January 2006, it was agreed that CCS would embark on a more aggressive turning program with training from Assured staff on repositioning techniques. Following the meeting, a request for more personal care hours was made to DSHS with the idea that this would enable a more aggressive turning program. The request was granted in February or March 2006.

¶ 8 A period of relative calm in Ida's medical status followed the January 2006 conference. During this time, in early 2006, Ida's AAA case manager discussed with Raven the possibility of hiring independent care providers as a way of filling gaps in CCS's care staffing. AR at 122 (Finding of Fact 61). Independent providers contract directly with DSHS, and it is the responsibility of the patient/client or her guardian to hire and supervise the independent providers, as opposed to caregivers provided by an agency like CCS, which supervises its employees. DSHS authorized approximately one additional hour of paid care for two aides. The administrative law judge (ALJ) concluded it was speculative that independent providers could have been found for the care hours CCS could not staff, given the difficulties associated with Ida's case. The review judge adopted this finding. AR at 122 (Finding of Fact 62). Additionally, Raven decided against this option because she did not feel equipped to supervise such providers. AR at 123 (Finding of Fact 62).

¶ 9 In May 2006, Ida's situation destabilized again when Assured quit as a result of the medication management in Ida's home. Without consistent administration of Ida's pain and anxiety medication by her husband, Assured felt Ida's behavior became too combative for staff to manage and that staff was at risk of harm. Assured's exit from Ida's care team also meant she lost her physician. Raven petitioned the Thurston County Superior Court for direction on what steps to take next, but the court's advice—to seek an out-of-home placement—ran afoul of Ida's wishes. Raven did not pursue the court's other suggestion: to retain an attorney to petition for an order granting Raven leave to fire CCS or to assist in compelling Ida's caregivers (including Richard) to cooperate with her plan of care. See AR at 1544–45 (Ex. 29, at 11–12). There was some acknowledgement in the colloquy that Raven already had the authority to replace CCS. See AR at 1546 (Ex. 29, at 13). The court also suggested Raven look into involuntary commitment; Raven did not pursue this option for several months.

¶ 10 A June 2006 care conference was convened with CCS to discuss whether the agency could continue to meet Ida's needs. The idea of getting nurse delegation certification for CCS workers was suggested, which would allow them, rather than Richard, to give Ida her medication. The necessary paperwork was filed with DSHS for CCS workers to receive nurse delegation certification. ⁵ During this period,Raven turned to a certified nurse practitioner friend to obtain a refill of Ida's pain medication and also continued to look for a primary care physician for Ida.

¶ 11 In mid-August 2006, Raven arranged to have Ida transported to the emergency room because Ida had no more pain medication and still had no doctor to prescribe a refill. On August 31, Raven was able to get Ida an October appointment with a doctor at Sea–Mar Clinic. As a result of the appointment, Ida was assigned a new hospice team from Providence Home Care/Hospice (Providence).

¶ 12 At the time Providence joined Ida's care team, Ida had no bedsores even though during this time she did not have all of her care hours filled. See AR at 128. But by November 15,...