State Department of Social Services Div. Of Aging

• Decision Date: 18 January 2000
• Citation: 11 S.W.3d 844
• Parties: (Mo.App S.D. 2000) . State of Missouri, Department of Social Services Division of Aging, Appellant, v. Carroll Care Centers, Inc., Respondent. WD56714 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

11 S.W.3d 844 (Mo.App S.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Department of Social Services Division of Aging, Appellant, v. Carroll Care Centers, Inc., Respondent.

WD56714

Missouri Court of Appeals Western District

Handdown Date: 01/18/2000

Appeal From: Circuit Court of Jackson County, Hon. William F. Mauer

Counsel for Appellant: Steven M. Mitchell

Counsel for Respondent: Harvey M. Tettlebaum

Opinion Summary:

Plaintiff the State of Missouri, Department of Social Services, Division of Aging, appeals the trial court's dismissal of its suit against Carroll Care Centers, Inc. under the Omnibus Nursing Home Act.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

Division II holds:

(1) The trial court did not err in dismissing the State's claim that Carroll violated section 198.067.3. A violation of section 198.067.3 occurs only if the nursing home has failed to correct a cited deficiency at the time of reinspection. Here, the deficiency had been corrected by the time of reinspection. Thus, the State's claim for sanctions was not authorized.

(2) The trial court erred in dismissing the State's claim alleging a violation of Section 198.067.10. Unlike section 198.067.3, section 198.067.10 does not require proof that the alleged deficiency still existed at the time of reinspection, and, thus, whether the State made a case under it depends on different issues than whether the State made a case under section 198.067.3. Carroll's motion to dismiss did not request dismissal of this count or separately address why this count did not state a claim. A motion to dismiss can be granted only on grounds stated in the motion. Therefore, it was error to grant Carroll's motion to dismiss the State's claim alleging a violation of section 198.067.10.

Opinion Author: Laura Denvir Stith, Judge

Opinion Vote: AFFIRMED IN PART, REVERSED AND REMANDED IN PART. Before Presiding Judge Harold L. Lowenstein, Senior Judge Forest W. Hanna¹ and Judge Laura Denvir Stith.

Opinion:

Opinion modified by Court's own motion on February 29, 2000. This substitution does not constitute a new opinion.

Plaintiff-Appellant, the State of Missouri, Department of Social Services, Division of Aging ("the State"), appeals the trial court's dismissal of its suit against Defendant-Respondent, Carroll Care Centers, Inc. ("Carroll"). The State argues that the trial court erred in dismissing its claim that Carroll violated Section 198.067.3 of the Omnibus Nursing Home Act because its Petition properly set out allegations of violations by Carroll of Class I standards of the Act.² The trial court disagreed, implicitly agreeing with Carroll that a violation of that section of the Act occurs only if the nursing home has failed to correct a cited deficiency at the time of reinspection, and here it is conceded that the deficiency was corrected at the time of reinspection. We also agree with Carroll's interpretation of the Act and affirm this aspect of the trial court's decision.

The State also asserts that the trial court erred in dismissing Count II in which it alleged that Carroll violated Section 198.067.10, in that the cited deficiencies resulted in serious physical injury to a resident of Carroll's nursing home. The State argues that because Carroll failed to include in its motion to dismiss any separate argument as to why the State did not make a claim under that subsection, and because a motion to dismiss can be granted only for reasons stated in the motion, it was error to dismiss its allegation under Section 198.067.10. We agree. Unlike Section 198.067.3, Section 198.067.10 does not require proof that the alleged deficiency still existed at the time of reinspection, and, thus, whether the State made a case under it depends on different issues than whether the State made a case under Section 198.067.3. For this reason, the trial court erred in dismissing the State's claims under Section 198.9067.10 at the time it dismissed the State's claim under Section 198.067.3, and we reverse and remand that portion of the trial court's order for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This suit involves the question whether Carroll violated the Omnibus Nursing Home Act, codified in Chapter 198 of the Missouri statutes ("the Act"), in regard to its care of John Doe, a patient admitted as a resident at Blue Ridge Nursing Home in 1997. Blue Ridge is operated by Carroll. Nursing homes such as Blue Ridge must meet certain standards in order to be licensed, and if they violate these standards they are subject to fines and penalties, the number and severity of which depends on the seriousness of the violation and the time it takes to correct the violation.

Section 198.085 sets out three levels of standards which nursing homes must meet:

(1) Class I standards are standards the violation of which would present either an imminent danger to the health, safety or welfare of any resident or a substantial probability that death or serious physical harm would result;

(2) Class II standards are standards which have a direct or immediate relationship to the health, safety or welfare of any resident, but which do not create imminent danger;

(3) Class III standards are standards which have an indirect or a potential impact on the health, safety or welfare of any resident.

Sec. 198.085.

In September 1997, the State inspected Blue Ridge Nursing Home. One of the patients in the nursing home at that time was John Doe. At the time of his admission, John Doe had a known medical history including exposure to tuberculosis, but he showed no active symptoms of the disease. On September 15, 1997, the inspector allegedly discovered that Carroll allowed John Doe to remain in the general patient population at the nursing home, despite the fact that he began showing symptoms of a severe respiratory condition which was later diagnosed as tuberculosis. The inspector believed that this constituted a violation of Class I standards of the Act, and issued Carroll a written statement of deficiencies, pursuant to Section 198.026.1, which, in summary, notified it that it violated the standards of the Act by: (1) admitting and continuing to care for residents whose needs cannot be met by the facility directly or in cooperation with outside resources; (2) failing to provide each resident with 24 hour protective oversight and supervision; (3) failing to provide each resident with personal attention and nursing care in accordance with his/her condition and consistent with current accepted nursing practice; and (4) failing to use acceptable infection control procedures and to make arrangements for prompt transfer for residents having or suspected of having a communicable disease, and failing to make a report to the Division of Social Services within 7 days when a resident is diagnosed as having a communicable disease.³

It also issued a notice of noncompliance for violation of a Class I standard and, pursuant to Section 198.029, provided copies of the notice to social service agencies and hospitals and provided for it to be posted at the center, and warned Carroll Care that it must adopt a plan of correction in accordance with Section 198.026.2.

Section 198.026.2 provides that a nursing home shall have five working days following receipt of a written report and correction order concerning a Class I violation to submit a plan of correction, and the State has five days thereafter to approve or disapprove the plan. A plan for a Class I standard violation requires immediate action, and the State must reinspect the facility within 20 days to determine whether the plan has been successfully implemented. Longer periods of time are allowed for correction and reinspection if Class II or III standards are violated. Id.

Section 198.026.3 provides that if, at the time of reinspection, the nursing home is not in substantial compliance with the Act's standards or if the operator is not correcting deficiencies in accordance with the plan of correction, then the State shall issue a notice of noncompliance. Section 198.026.4 provides:

The notice of noncompliance shall inform the operator or administrator that the department may seek the imposition of any of the sanctions and remedies provided for in section 198.067, or any other action authorized by law.

Sec. 198.026.4 RSMo 1994.

Here, when the State conducted its follow up investigation on October 15, 1997, the State determined that Carroll's violations had been adequately addressed and corrected, so no notice of noncompliance was issued pursuant to Section 198.026.4. Nonetheless, on July 13, 1998, the State filed a civil penalty action against Carroll under Section 198.067. It alleged that, by leaving John Doe in the general patient population while he was experiencing severe respiratory symptoms, Carroll had violated Class I standards for the operation of nursing homes and was subject to penalty for that violation, even though the violation had been corrected by the time of reinspection. Citing Section 198.067.3,⁴ the State sought $575 per day per violation for the 30 days following the initial determination of violation on September 15, 1997, until the time of reinspection on October 15, 1997. This totals $2,300 per day, or $69,000. The State also sought $3,800 as an additional monetary penalty under Section 198.067.10, alleging that the violations had caused serious physical injury to John Doe.⁵ In total, the State requested $72,800 in fines under both sections.

On September 2, 1998, Carroll filed a motion to dismiss the action, asserting that the State failed to plead an essential element of its claim for recovery in that the State failed to allege facts showing that Carroll's action constituted an actionable "violation" as that term is defined in Section 198.067.3, since the State did not allege that Carroll failed...