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

         [255 Cal.Rptr.3d 82] APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.

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         COUNSEL

         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, Oakland, as Amicus Curiae on behalf of Defendant and Appellant.

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

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

          OPINION

          RAPHAEL J.

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         [255 Cal.Rptr.3d 83] 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.

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          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 [255 Cal.Rptr.3d 84] 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

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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. [255 Cal.Rptr.3d 85] 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]

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          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 ...