California Court of Appeals, Fourth District, Second Division
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,
...