Victor v. New Mexico Dep't of Health

• Decision Date: 03 October 2013
• Docket Number: No. 31,497.,31,497.
• Citation: 316 P.3d 213
• Parties: Patricia VICTOR, CNA, Plaintiff–Appellant, v. NEW MEXICO DEPARTMENT OF HEALTH and Alfredo Vigil, M.D., Secretary of the Department of Health, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

316 P.3d 213

Patricia VICTOR, CNA, Plaintiff–Appellant,

v.NEW MEXICO DEPARTMENT OF HEALTH and Alfredo Vigil, M.D., Secretary of the Department of Health, Defendants–Appellees.

No. 31,497.

Court of Appeals of New Mexico.

Oct. 3, 2013.

Youtz & Valdez, P.C., Shane Youtz, Stephen Curtice, Albuquerque, NM, for Appellant.

N.M. Department of Health, Office of General Counsel, Elizabeth Trickey, Santa Fe, NM, for Appellees.

OPINION

SUTIN, Judge.

{1} Appellant Patricia Victor appeals the district court's order affirming a decision of the secretary of the New Mexico Department of Health (the Department) finding that, in her capacity as a certified nurse aide, Appellant abused residents of a health care facility. The finding led to the permanent placement of Appellant's name on a nurse aide registry, thereby effectively ending her ability to find employment as a certified nurse aide. Appellant claims that her right to procedural due process was violated. We disagree and affirm the district court's order.

{2} Before reaching the merits of Appellant's argument, we consider and reject a number of challenges raised by the Department concerning this Court's jurisdiction over the appeal.

LEGAL CONTEXT

{3} According to regulations promulgated by the secretary of the Department, all complaints received by the Department for which there is reason to believe that a resident of a health care facility has been abused by a nurse aide ¹ must be investigated. See16.12.20.7(I), (J) NMAC (10/31/1996, amended 10/15/2012); 16.12.20.3 NMAC (9/1/1993, amended 10/15/2012). If the Department determines by its investigation that resident abuse occurred, it must notify the nurse aide implicated in the investigation of the nature of any allegation, the date and time of the occurrence, and about the right to a hearing. 16.12.20.10(A)-(C) NMAC (5/28/1999, amended 10/15/2012). The Department must also disclose that once the nurse aide has been heard, the Department will report the substantiated findings to the nurse aide registry. See16.12.20.10(D) NMAC. Further, if the nurse aide fails to request a hearing, the Department will report the substantiated findings to the facility that employs the nurse aide and to the nurse aide registry. 16.12.20.10(E) NMAC; see16.12.20.7(H) NMAC (“ ‘Registry’ means a listing by the [Department] of all individuals who have satisfactorily completed a nurse aide training ... program[.]”).

{4} If a nurse aide timely requests a hearing, the secretary of the Department (the secretary) must “appoint an impartial hearing officer to conduct the hearing and issue a report and recommended decision. The hearing officer need not be an attorney.” 16.12.20.12 NMAC (9/1/1993, amended 10/15/2012). During the hearing, the Department “has the burden of proving, by a preponderance of the evidence, the existence of the conduct relied upon to” place a finding of abuse on the nurse aide registry. 16.12.20.16(B) NMAC (9/1/1993, amended 10/15/2012). Within five working days of the hearing, the hearing officer must send a written report stating his or her recommended decision and the basis therefor to the secretary who is vested with authority to make a final determination whether the abuse occurred. 16.12.20.17 NMAC (9/1/1993, amended 10/15/2012); 16.12.20.18 NMAC (9/1/1993, amended 10/15/2012).

{5} If the secretary finds that the nurse aide has abused a resident, the Department must, as a matter of federal and state regulations, report its finding to the nurse aide, the administrator of the facility that employs the nurse aide, and to the nurse aide registry. 42 C.F.R. § 483.156(a)(1), (c)(1)(iv) (2013); 16.12.20.19 NMAC (9/1/1993, amended 10/15/2012). The secretary's report to the nurse aide registry must include the finding made by the secretary as a result of the hearing and any statement by the nurse aide disputing the finding. 16.12.20.20(A), (B) NMAC (9/1/1993, amended 10/15/2012). Although a nurse aide may appeal the secretary's final determination, an appeal does not stay the reporting requirements. See16.12.20.22 NMAC (9/1/1993, amended 10/15/2012). Further, as a matter of federal and state regulations, a nurse aide found to have abused a resident may not petition the Department for the removal of his or her name from the nurse aide registry. 42 C.F.R. § 483.156(c)(iv)(D); 16.12.20.23 NMAC (5/28/1999, amended 10/15/2012). However, a finding of abuse may be removed from the registry if a court holds that the nurse aide did not abuse a resident. 42 C.F.R. § 483.156(c)(iv)(D).

{6} Should a party choose to appeal the secretary's final action, the appeal must be taken pursuant to Rule 1–075 NMRA within thirty days of the secretary's order. 16.12.20.22 NMAC (10/15/2012) ². Rule 1–075(C) governs the contents of a petition for a writ of certiorari and requires the petition to include “a concise showing that the petitioner is entitled to relief[,]” among other things. Rule 1–075(C)(4). The district court must issue a writ of certiorari if the petition was filed in accordance with the filing and content provisions of Rule 1–075, and if the petition “makes a prima facie showing that the court has jurisdiction over the agency, that the petitioner is entitled to relief[,] and that the petitioner does not have a right to review by appeal.” Rule 1–075(G)(2). The petitioner may also file a motion requesting the district court to stay enforcement of the order or decision under review. SeeRule 1–075(Q) (stating that, under some circumstances, “the district court may stay enforcement of the order or decision under review”).

{7} Should the district court grant the petition for writ of certiorari, the district court, in its appellate capacity, must issue a written decision, reflecting its order of remand, reversal, or affirmance of the agency's order. Rule 1–075(T). Appeals from the district court's order may be sought in accordance with the Rules of Appellate Procedure. Rule 1–075(V).

BACKGROUND

{8} Appellant was terminated by her employer, the Albuquerque Heights Healthcare and Rehabilitation Center (the facility) based on allegations that she abused residents of the facility's hospice unit. By letter, the Department advised Appellant that it received a complaint alleging that she had violated the rights of a resident by abuse, that the allegation had been investigated, and that it was found to be valid. The letter also notified Appellant that she had a right to a hearing to appeal that finding. Appellant responded in a letter to the Department requesting a hearing.

{9} The Department appointed an attorney as the hearing officer in Appellant's case, and a hearing was scheduled. Following the hearing, the hearing officer completed a report recommending that Appellant's name be placed on the nurse aide registry because Appellant had abused four residents of the facility. The secretary, having reviewed the hearing officer's report and recommendation, found the hearing officer's recommendation to be appropriate; and the secretary ordered Appellant's abuse of the residents to be reported to and recorded in the nurse aide registry.

{10} Underlying the secretary's finding of abuse and subsequent placement of that finding on the nurse aide registry was Appellant's treatment of four residents of the facility's hospice unit. In one incident, Appellant continued to feed a resident who was coughing, thereby creating a risk of aspiration. Appellant transferred another resident from bed to a wheelchair “roughly” and then kicked the resident to force the resident's foot onto the foot rest of the wheelchair. Another resident, the roommate of the resident involving the wheelchair, suffered emotional abuse from having observed the incident; and reported that she had also been treated roughly by Appellant. Finally, another resident was slapped by Appellant.

{11} Appellant filed a petition for writ of certiorari to the district court for review of the secretary's order. As a basis for reversal of the secretary's order, Appellant stated without further elaboration, that she was “entitled to have the decision of the [s]ecretary ... reversed because the [s]ecretary's decision was arbitrary and capricious, not supported by substantial evidence and not in accordance with the law.” Owing to the inconsistency between Rule 1–075 and then-current 16.12.20.22 NMAC (9/1/1993), in terms of which court had jurisdiction over her appeal, Appellant also filed a concurrent petition for a writ of certiorari in this Court. The district court recognized that it, rather than this Court, had jurisdiction to hear Appellant's appeal; however, the district court noted that Appellant “understandably” filed concurrent petitions in both courts and stayed Appellant's petition until this Court declined jurisdiction over the matter.

{12} Appellant filed a motion in district court to lift the stay of her petition for a writ of certiorari because this Court had dismissed her concurrently filed petition for certiorari because we did not then have jurisdictionover the appeal. The district court lifted the stay and ordered that “[Appellant's] attorney shall submit a proposed [w]rit of [c]ertiorari ... for approval.” About a week later, Appellant filed a motion to amend the petition for writ of certiorari and attached a proposed amended petition for writ of certiorari to the district court for review of final action by the secretary. Appellant's motion to amend was made pursuant to Rule 1–015 NMRA and sought to amend the petition “to fully comply with Rule 1–075 ... by supplementing the reasons cited entitling her to a writ.” SeeRule 1–015(A) (providing, in relevant part, that a party may amend a pleading by leave of the court and leave shall be freely given when justice so requires). The amended petition included an enumeration of alleged errors upon which Appellant sought reversal of the secretary's decision, including Appellant's assertion that the regulations applicable to this...