Salmon v. Dept. of Public Health & Addiction Services

• Citation: 58 Conn. App. 642,754 A.2d 828
• Decision Date: 11 July 2000
• Docket Number: (AC 18253)
• Court: Appellate Court of Connecticut
• Parties: SANDRA SALMON v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES

58 Conn. App. 642

754 A.2d 828

SANDRA SALMON v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES

(AC 18253)

Appellate Court of Connecticut.

Argued December 10, 1999.

Officially released July 11, 2000.

O'Connell, C. J., and Foti and Schaller, Js.¹ Donna Decker Morris, with whom, on the brief, was David A. Reif, for the appellant-appellee (plaintiff).

Edward F. Osswalt, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee-appellant (defendant).

Opinion

FOTI, J.

In this administrative appeal involving alleged patient abuse in a nursing care facility, the plaintiff, Sandra Salmon, appeals from the judgment of the trial court sustaining in part her appeal from the decision of the defendant, the department of public health and addiction services (department).² The department cross appeals from the judgment sustaining the plaintiffs appeal and remanding the case to the department for further fact-finding. On appeal, the plaintiff claims that the court improperly (1) concluded that the department had jurisdiction to hear the complaint, (2) concluded that her due process rights were not violated, (3) concluded that the department relied on credible testimony, (4) interpreted General Statutes § 20-102cc (a)³ as not requiring an element of intent and (5) abused its discretion in denying her motion to present additional evidence. In addition, the plaintiff and the department claim that the court improperly remanded the case to the department. We disagree with both parties and affirm the judgment of the trial court.

The following facts found by the department's hearing officer are necessary to the resolution of this appeal. In August, 1993, the plaintiff was employed as a registered nurse's aide⁴ at Shelton Lakes Residence and Health Care Center (Shelton Lakes) in Shelton. On August 18, 1993, Shelton Lakes terminated the plaintiffs employment on the basis of allegations of patient abuse and reported the accusations to the department. On April 27, 1994, the department brought formal charges against the plaintiff, alleging that she had violated 42 U.S.C. § 1395i-3 (c) (1) (A) (ii) and 42 U.S.C. § 1395i-3 (g) (1) (C) (Sup. V 1993) in that she had abused Vivian Tschauder, a nursing home resident, "by using vulgar and inappropriate language and intimidating the resident [while] rendering incontinent care" to her.

The department notified the plaintiff by letter (dismissal letter) dated May 9, 1994, that the charges against her had been dismissed for insufficient evidence. On May 16, 1994, Mary C. Crowley, a Shelton Lakes administrator, wrote a letter to Donna Buntaine Brewer, chief hearing officer at the department, stating, inter alia, that it was Crowley's understanding "from our telephone conversation today, that at no time was the complaining resident interviewed by your department and, therefore, you are reopening the case as of today." On May 20, 1994, the department notified the plaintiff that it had sent the dismissal letter in error.

On August 16, 1994, the department served the plaintiff with notice of the hearing and the statement of the charges, which the plaintiff, through her attorney, answered on September 4, 1994. A hearing before a department hearing officer was held on December 16, 1994. At the hearing, Tschauder testified, "I was all naked there, and she's wiping me and she said, `That's pussy.' She kept wiping me, wiping me, saying, `Pussy, pussy, pussy,' all the time I'm—away from it all. I couldn't." Tschauder testified that she was not afraid of the plaintiff after that incident, but that the plaintiff had frightened her that night.

In her defense, the plaintiff denied ever physically or verbally abusing Tschauder. The plaintiff testified that on the night before Tschauder made the accusation, the plaintiff had a dispute over an unrelated bath incident with coworker Diane Thorpe, the nurse's aide who reported the Tschauder allegation to the head nurse. The plaintiff further testified that Thorpe allegedly told her that night that she would "get" the plaintiff.⁵ The plaintiff also called Crowley and the Shelton Lakes director of nursing, Mary Frances Wolf, to testify. Crowley gave testimony regarding her investigation of the alleged incident with Tschauder and the termination of the plaintiffs employment. Wolf testified regarding Tschauder's physical condition and mental state.

On January 20, 1995, the hearing officer issued a proposed final decision in which he determined that Tschauder's testimony was more credible than the plaintiffs and that Tschauder "had nothing to gain by fabricating a story, as [the plaintiffs] attorney suggested she was doing. She was consistent in the main points of her testimony on both direct and cross-examinations. She not only told Diane Thorpe, but also Mary Crowley and Mary Frances Wolf what had happened."

On February 15, 1995, the commissioner of public health and addiction services (commissioner) adopted the proposed decision as the final decision in the case. In that decision, the commissioner found that the plaintiff had abused the patient through intimidation, and by using vulgar and inappropriate language. The commissioner, however, sent a letter to the plaintiffs attorney notifying him that the February 15, 1995 final decision had been sent in error because the department had not been notified that the plaintiff had timely requested an opportunity to file exceptions to the proposed final decision of January 20, 1995, and to present oral argument prior to the February 15, 1995 final decision. After both parties filed briefs and oral argument was heard on March 24, 1995, another final decision was issued on April 25, 1995. That decision adopted and incorporated the January 20, 1995 proposed final decision in which the hearing officer determined that patient abuse had occurred solely on the basis of the use of vulgar and inappropriate language. Furthermore, the commissioner's decision stated that "a finding of resident abuse [shall] be listed on the Connecticut Nurse Aide Registry [registry], and that this final decision [shall] be filed in the registry."

The plaintiff thereafter appealed from the department's decision to the Superior Court pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., claiming that the department (1) lacked jurisdiction to hear the complaint, (2) violated her due process rights (3) relied on testimony that lacked credibility and (4) exceeded its statutory authority by finding that vulgar and inappropriate language constituted abuse. The court sustained the plaintiffs appeal on the sole ground that the plaintiffs substantial rights were prejudiced by the department's determination of resident abuse without the requisite finding that the plaintiffs use of vulgar and inappropriate language had an adverse affect on the patient. The court remanded the case to the department for further proceedings on the existing record to state its findings as to whether the language at issue had an adverse impact on Tschauder. From that judgment, the present appeal and cross appeal ensued.

I

The plaintiff first claims that the court improperly concluded that the department had jurisdiction to proceed against her on the alleged violations of federal law.⁶ We disagree.

"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation....

"This concept, however, is not limited to courts. Administrative agencies [such as the department] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.... We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner.... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power....

"[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case.... Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver." (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996). "We ... note that, because [a] determination regarding ... subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

The plaintiff first claims that the department attempted to grant itself jurisdiction to prosecute her for alleged violations of federal law since the statement of charges⁷ against her alleged only violations of federal law. The plaintiff argues that neither § 20-102cc (a) nor any of the state statutes and regulations cited in the statement of charges provided the department with authorization to prosecute alleged violations of federal law. Furthermore, the plaintiff argues that although the department theoretically could have relied on § 20-102cc (a), it committed itself to seeking enforcement of only federal law and therefore is now precluded from asserting § 20-102cc (a) to supply...