RSCR Inland, Inc. v. State Department of Public Health

          APPEAL from the Superior Court of Riverside County No. RIC1407237 Gloria Trask, Judge. Affirmed.

          Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General and Jennifer M. Kim, Kristen T. Dalessio and Malinda Lee, Deputy Attorneys General, for Defendant and Appellant.

          Salma E. Enan for Disability Rights California as Amicus Curiae on behalf of Defendant and Appellant.

          Davis Wright Tremaine, John R. Tate and Karen A. Henry, for Plaintiff and Appellant.

          Hooper, Lundy & Bookman, Mark E. Reagan and Stephanie A. Gross for California Association of Health Facilities as Amicus Curiae on behalf of Plaintiff and Appellant.

          OPINION

          RAPHAEL, J.

         We address the scope of the “reasonable licensee defense” through which a California long-term health care facility may show that a citation for a regulatory or statutory violation should be dismissed, even though there is a factual basis for the citation. The California Department of Health argues that the defense is available only in the event of an “emergency” or “special circumstances.” We reject that view and follow the statutory standard, holding that the facility may succeed in dismissing a citation by demonstrating that it did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation or statute that allegedly was violated.

         This standard differs from the required showing of due care in a typical negligence case because the facility must show reasonable care directed at complying with the regulation or statute, not reasonable conduct in general. But the standard does not require an emergency or an unusual circumstance. Applying the statutory standard, we conclude that substantial evidence supported the trial court's finding that the facility here had established the reasonable licensee defense. Thus, we affirm the judgment.

         I. FACTS AND PROCEDURAL BACKGROUND^[1]

         This case arose following the death of Eric, a resident of Chapala House, a single-family residence in Riverside that provides round-the-clock care and support to six residents.^[2] Chapala House is licensed as a “long-term health care facility” under the Long-Term Care, Health, Safety, and Security Act of 1973 (Health and Saf. Code, ^[3] § 1417 et seq.) (the Act)-more specifically, as an “[i]ntermediate care facility/developmentally disabled habilitative” (ICF/DD-H).^[4] (See § 1418, subd. (a)(4).)

         Plaintiff and appellant RSCR Inland, Inc. (ResCare) owns Chapala House. Defendant and appellant State Department of Public Health (the Department) issued a citation and imposed a civil penalty on ResCare in connection with Eric's death, and ResCare brought this lawsuit to challenge the citation and penalty.

         Eric was transferred to Chapala House in 2009. As the result of a car accident, he was largely paralyzed except for a “very limited range of motion and dexterity in his right upper extremity, ” including “pincher dexterity in his right hand.” He was therefore “totally dependent on others for activities of daily living.” After the accident, he was also diagnosed with “a mild intellectual disability and major depression disorder.” At the time of Eric's transfer to Chapala House, he had a history of “maladaptive behaviors, ” including “(1) self-injurious behavior consisting of placing his fingers in his mouth to induce vomiting, (2) property destruction consisting of throwing objects, and (3) trying to leave his wheelchair unassisted.” He also had a history of putting into his mouth, and sometimes swallowing, inedible objects, particularly when he was upset or angry.^[5] His medical records note that “from time to time” when Eric was engaging in “maladaptive behaviors” he would make statements “to the effect that ‘I want to die.'” But Eric's physicians did not identify him as a “suicide risk, ” and they did not order any “special measures... beyond medication.”

         At Chapala House, residents were cared for by two “direct care staff members, ” who were unlicensed but trained caregivers. The direct care staff members were supervised by a Qualified Intellectual Disabilities Professional (QIDP) and a registered nurse (RN), who periodically visited the residence.^[6] Chapala House-specifically, the RN-prepared a nursing care plan that addressed Eric's “maladaptive behaviors.” The plan provided that when Eric uttered “harmful words... during behaviors, ” staff should, among other things, (1) call the “RN [and QIDP]” as soon as possible and document the behavior, (2) remove all objects around Eric to “avoid harm to [him]self and others, ” and (3) take various steps to prevent aspiration or choking, including sitting Eric upright or placing him on his side.^[7]

         In depositions and at trial, the direct care staff members testified that they were not familiar with the nursing care plan. But the RN who prepared the nursing care plan testified that she trained the direct care staff about what was in the nursing care plan and how to comply with it. A ResCare expert witness was willing to “assume” that such training was performed, and that the direct care staff members had been made aware of the contents of the nursing care plan, whether or not they had actually seen the document, because the staff had implemented many (even if not all) aspects of the plan. She explained that typically staff members are not given a copy of the nursing care plan because of privacy concerns, but that instead they are trained to implement its contents through discussions.^[8]

         Eric also had “behavior plans” addressing various “distinct, maladaptive behaviors, ” including placing his fingers down his throat to induce vomiting, destroying property by throwing objects, and throwing himself out of his wheelchair. The behavior plans were not entirely consonant with the nursing care plan. For example, none of the behavior plans included in the record required staff to remove all objects from Eric's reach. And the behavior plans did not provide any separate instructions about what to do if Eric uttered “harmful words... during behaviors.”

         Unlike with respect to the nursing care plan, the direct care staff was required to log Eric's progress towards the goals set by the behavior plans twice daily. The frequency of Eric engaging in “maladaptive behaviors” declined while he was at Chapala House, but did not cease. For example, in the 60 days before his death, there were two incidents when he “attempt[ed] to slide out of his [wheelchair] unassisted, followed by efforts to self-induce vomiting while making harmful statements related to his unhappiness with his physical condition.” To have two such incidents in that time period was “consistent with the current frequency of behaviors as charted, ” and the incidents were not “meaningfully different” in character from earlier incidents.

         On November 24, 2012, at approximately 2:38 p.m., Eric “attempted to slide out of his wheelchair while watching television in his room.” A direct care staff member then placed Eric on a padded mat in the center of his room, lying on his back. When asked what was wrong, Eric replied “‘I don't know. I want to die.'” About five minutes later, Eric used his right hand to cause himself to vomit, and repeated that he wanted to die. He was immediately cleaned by staff, who tried to redirect him. Over the next hour, staff checked on Eric approximately 10 times, including a visit from one staff member between 3:30 and 3:35, and another visit from a different staff member shortly after that. At approximately 3:45 p.m., however, Eric was discovered choking on a small towel or washcloth, which had been left within his reach, and which he had inserted into his mouth while he was alone in his room. CPR was administered, the QIDP was notified, and paramedics were called to take Eric to the hospital, but he later died.

         The Department investigated the circumstances of Eric's death, and in October 2013 issued a “Notice of Intent to Issue a Citation and Notice to Correct a Violation.” A draft of the citation as it would eventually issue was completed by April 7, 2014, when it was approved by the Department's regional field operations branch chief. On April 8, 2014, a representative of the Department held what the trial court described as a “perfunctory exit conference with a ResCare representative.” On April 9, 2014, the district manager of the Department's Riverside district office reviewed and approved the citation. On April 11, 2014, the Department issued and served the citation on ResCare, along with an amended notice of intent to issue a citation.^[9]

         The citation issued to ResCare was a class AA citation, the most serious category of violation, and was accompanied by a $25, 000 civil penalty. (See § 1424, subd. (c).) It stated that ResCare violated two regulations governing Eric's care-California Code of Regulations, title 22, sections 76918, subdivision (a), and 76875, subdivision (a)(2)-when it “failed to ensure [Eric] was free from neglect and protected from self-injurious behavior” by implementing his nursing care plan.^[10] More specifically, ResCare had, on the date of Eric's death, failed to ensure that staff (1) immediately reported to the QIDP and RN Eric's “ongoing behavior of self-induced vomiting and stating he wanted to die, ” (2) removed all objects from Eric's reach during such behavior, and (3) sat Eric upright or on his side “during the episode....”

         ResCare brought suit, seeking dismissal or reduction of both the citation and the civil penalty. (See § 1428, subd. (b).) The trial court ruled in the first phase of trial that the Department had met its burden to prove by a preponderance of the evidence the elements to support the issuance of the citation: Eric's nursing care plan had not been followed in several respects, because Eric's behavior was not reported as soon as possible to the QIDP or RN, staff did not position Eric upright to “guard against aspiration, ” and staff failed to remove all objects from Eric's reach.

         In the second phase of trial, the trial court rejected ResCare's argument that the Department had failed to comply with a statutory exit conference requirement. (See § 1423, subd. (a).) The trial court found, however, that ResCare had established the reasonable licensee defense, that is, that it “did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation[s].” (§ 1424, subd. (c).) Although the direct care staff members had not followed Eric's nursing care plan in all respects, they had been “attentive to [Eric], complied with his separate, specific behavior plans for the types of maladaptive behaviors manifested, prevented him from aspirating, and took various steps in an attempt to ensure his safety.” The trial court found that total compliance with the nursing care plan was not the applicable standard of care, accepted expert testimony presented by ResCare that the direct care staff had “acted reasonably in its care of [Eric] on the day in question, ...