5-0909-10014-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA BOARD OF NURSING HOME EXAMINERS

 

In the Matter of Kenneth W. Steiger, N.H.A.; License No. 00123.

ORDER ON MOTION FOR SUMMARY DISPOSITION

            By motion dated October 20, 1995, the Executive Director of the Board of Nursing Home Examiners (hereinafter; Complainant) seeks summary disposition of her allegation that disciplinary action should be taken against Respondent’s Nursing Home Administrator license.  The motion asserts that Respondent should be deprived of the hearing mandated in Minn. Stat. § 214.10, subd. 2, alleging that there is no material factual dispute.  Complainant asks the Board to impose some unspecified “appropriate disciplinary action” against Respondent’s license which could include sanctions ranging in severity from a private reprimand or public censure, to probation with conditions and/or a temporary suspension, to outright revocation.  She bases her request solely upon five penalty assessment notices issued by the Health Department over a 26 month period against a facility previously owned and managed by Respondent, between August 5, 1991 and September 20, 1993.

            Respondent objects to the motion, seeking to present his side of the dispute, at the hearing provided for in the statute, for the Board’s consideration in deciding what sanction, if any, should be imposed against his license.  He filed a response to the motion contesting the veracity and severity of the assessments, his personal culpability and what impact, if any, they should have on his professional certification.  He asserts that the citations were based on interviews with:

mostly disgruntled and/or fired employees.  There were many employees and families that were pleased with the care and requested to talk with the surveyors, but conveniently the surveyors never got around to talking to them.

            The record closed on the motion on November 28, 1995, upon receipt of the last filing.

Penny Troolin, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul,  Minnesota 55103, appeared on behalf of the Complainant, Julie M. Vikmanis, Executive Director of the Board of Examiners for Nursing Home Administrators.  Kenneth Steiger, 523 Aspen Grove, Hibbing, Minnesota  55746, the Respondent-licensee, appeared on his own behalf, without benefit of counsel.

Based upon the Motion for Summary Disposition, the written submissions of the parties and on all the files and records herein, the Administrative Law Judge makes the following:

ORDER

The motion is in all respects, DENIED.

Dated this 11th day  of January, 1996

 

                                                                             

HOWARD L. KAIBEL, JR.

Administrative Law Judge

MEMORANDUM

Background

            Pursuant to inspections by surveyors from the Department of Health between  the Fall of 1991 and the Fall of 1993, assessments were levied against a nursing home owned by the Respondent alleging noncompliance with five relevant correction orders.  The facility did not contest one of the assessments relating to oxygen precautions contending that a single warning sign was removed by someone sometime after surveyors began their inspection.  It did not appeal another assessment order relating to staffing, conceding that a miscalculation by a receptionist left them two hours short one weekend in required patient/staff ratios.  The facility sought to challenge the other three assessments cited herein, but contested case hearings were denied on those assessments, pursuant to orders for summary disposition which were upheld in court appeals.  Respondent’s version of the facts relative to the assessments varies substantially from Complainant’s version.

            The Complainant, on behalf of the Board’s Standards of Practice Committee, subsequently initiated this disciplinary action against Respondent’s Nursing Home Administrator license on September 8, 1995.  Thereafter, on October 20, 1995, she filed this motion for summary disposition.

            Respondent has been a licensed nursing home administrator in Minnesota for more than 23 years.  He asserts that he can present material evidence for the Board’s consideration demonstrating his competence to continue practicing, if the motion is denied.

Summary Disposition

The request for summary disposition is analogous to a motion for summary judgment under Rule 56.02 of the Minnesota rules of Civil Procedure.  The same standards apply.  Minn. Rule pt. 1400.5500 K .  Summary disposition of a claim is appropriate when there is no genuine issue as to any material fact and one party is entitled to a favorable decision as a matter of law.  Minnesota Rules of Civil Procedure, Rule 56.03.  A material fact is one which is substantial and will affect the result or outcome of the proceeding, depending upon the determination of that fact.  Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W.2d 804 (Minn. App. 1984).  In considering the Motion for Summary Disposition, the evidence must be viewed in the light most favorable to the nonmoving party.  Grandahl v. Bulluck, 318 N.W.2d 240 (Minn. 1982); Nord v. Herreid, 305 N.W.2d 337 (Minn. 1981); American Druggists Insurance v. Thompson Lumber Co., 349 N.W.2d 569 (Minn. 1989).

In order to obtain summary disposition, the moving party carries the burden to establish there is no genuine issue of material fact.  The initial burden is on the moving party to establish a prima facie case for the absence of material facts at issue.  Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).  Once the moving party has established a prima facie case, the burden shifts to the nonmoving party.  Minnesota Mutual Fire & Casualty Company v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990).  When the movant also bears the burden of persuasion on the merits at trial, its burden on summary disposition is to present “credible evidence” that would entitle it to a directed verdict if not controverted at trial.  Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) (dissenting opinion restating majority position);  Thiele, 425 N.W.2d at 583, n. 1.  When the nonmoving party bears the burden of persuasion at trial, however, the moving party’s burden can be met by informing the trial court of the basis for its motion and merely identifying those portions of the pleadings, depositions, answers to interrogatories, admissions or affidavits which it believes demonstrate the absence of a genuine issue of material fact.  The moving party in such a case is not required to support its motion with affidavits or other similar material negating the opponent’s claim and can meet its burden by merely pointing out “that there is an absence of evidence to support the nonmoving party’s case.”  Celotex Corp., 106 S. Ct. at 2553, 2554.  In Celotex, the Court stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.  In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all the other facts immaterial.  The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.  “[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). . .”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

   106 S. Ct. at 2511.  Accord Carlisle v. City of Minneapolis, 437 N.W.2d 712 (Minn. App. 1989).

Summary disposition may be entered against a party who has the burden of proof at trial if it fails to make a “sufficient showing” of the existence of an essential element of its case after adequate time to complete discovery.  Carlisle, 437 N.W.2d at 715.  To meet this burden of producing “sufficient” evidence, the nonmoving party with the burden of proof at trial must offer “significant probative evidence” tending to support its claims.  This burden is not met by a mere showing that there is some “metaphysical doubt” as to the material facts.  Id.  However, the nonmoving party is given the benefit of the most favorable view of the evidence.  Concord Co-op v. Security State Bank of Claremont, 432 N.W.2d 195, 197 (Minn. App. 1988).  Also, all doubts and inferences must be resolved against the moving party.  Dollander v. Rochester State Hospital, 362 N.W.2d 386, 389 (Minn. App. 1985).

Appellate courts have repeatedly stressed that the authority of the trier of fact to dispose of issues summarily must be exercised cautiously.  Lundgren v. Eustermann, 370 N.W.2d 877 (Minn. 1985).

If any doubt exists as to the existence of a material fact, the doubt must be resolved in favor of finding that the fact issue exists Rathbun v. W T Grant Company, 300 Minn. 223, 219 N.W.2d 641, 646 (1974).  Woody v. Krueger, 374 N.W.2d 822 (Minn. App. 1985).

            The trier of fact must assume the credibility of the evidence offered on summary judgment motions and deny them wherever that evidence indicates there is a material fact issue.  In Howie v. Thomas for example, the Minnesota Court of Appeals held in 1994 (514 N.W.2d 822) in a paternity case that summary disposition was improper despite a blood test showing a 99.96% probability of parentage, because the putative father’s denial of sexual intercourse created a fact question:

 

Where the evidence is circumstantial and sustains two or more inconsistent inferences with equal weight, a directed verdict may be appropriate (because the burden of proof had not been sustained and a contrary verdict would be based on speculation), but a summary judgment would not be.

See also, Doe v. Brainerd International Raceway, Inc., 514 N.W.2d 811 (Minn. App. 1994).

The function of the trier of fact in deciding a Motion for Summary Disposition is never to weigh the evidence in an attempt to determine what the facts are.  Wagner v. Schwegmann’s South Town Liquor, Inc., 485 N.W.2d 730 (Minn. App. 1992).  Once the nonmoving party introduces evidence showing that there is a material fact issue, the inquiry is over and the motion must be denied, without engaging in fact finding.

The Minnesota Court of Appeals has called summary judgment a “blunt instrument” which should only be employed when it is perfectly clear that no issue of fact is involved.  Home Mutual Insurance Company v. Snyder, 356 N.W.2d 780 (1984).  The Minnesota Supreme Court has cautioned that the motion should be denied even where the evidence leads one to suspect that it is unlikely that the nonmoving party will prevail upon trial.  Whisler v. Findeisen, 280 Minn. 454, 160 N.W.2d 153 (1968):

That fact is not a sufficient basis for refusing Defendant his day in court with respect to issues which are not shown to be sham, frivolous, or so insubstantial that it would obviously be futile to try them.  Sprague v. Vogt (8 Cir) 150 F.2d 795; Donnay v. Boulware, 275 Minn. 37, 144 N.W.2d 711; Clark, The Summary Judgment, 36 Minn. L.Rev. 567; 10 Dunnell, Dig. (3 ed.) section 4988 b; Annotation, 48 A.L.R. (2d) 1188; Rakeness v. Swift and Company, 275 Minn. 451, 147 N.W.2d 567.

Finally and of considerable consequence in this case, a motion for summary judgment is not appropriate to dispose of cases requiring determination of subjective facts such as motive, intent, good faith and knowledge, nor is it appropriate for disposition of cases in which the ultimate decision will be based upon opinion evidence.  Morgan v. Campbell, Campbell and Johnson, 561 So. 2d 926 (La. App. 1990). 

Nursing Home Licensure

It is important to understand that the laws relating to nursing home licensure are different from the law governing licensure of nursing home administrators.  Complainant devotes a considerable portion of her moving papers to the statute relating to licensure of homes.  The statute and cases dealing with home licensure are analogous and instructive, as long as the significant differences are kept in mind.

Disciplinary proceedings against nursing home licenses in Minnesota are governed by Minn. Stat. § 144A.11.  Subdivision 1 of that statute authorizes the Commissioner of Health to initiate a disciplinary proceeding to suspend or revoke the license of a nursing home whenever any nursing home employee “performs any act contrary to the welfare of a patient or resident of the nursing home.”  Subdivision 2 of the statute is the so-called “mandatory” section requiring the Commissioner of Health to “initiate “ proceedings “to suspend or revoke a nursing home license” in certain situations including four or more uncorrected violations “in the four highest daily fine categories prescribed in the rule”.  It is important to understand that the statute only mandates initiation of a disciplinary proceeding, which could ultimately result in imposition of some sanction less severe than suspension or revocation and that it could result in no sanction being imposed at all, as it has evidently in this case.  Subdivision 3a of the law makes this legislative intent clear by providing for automatic mandatory revocation of a nursing home license in the case of felonies or gross misdemeanors related to resident safety.  Subdivision 3 provides a mandatory hearing for all facilities that have been previously duly licensed:

No nursing home license may be suspended or revoked, and renewal may not be denied, without a hearing held as a contested case in accordance with Chapter 14.

Subdivision 4 of the law makes it clear that revocation of a nursing home license for uncorrected violations is intended to be in most cases a temporary ameliorative sanction.  It allows a facility whose license has been revoked under such circumstances to reapply for licensure “when the conditions upon which revocation was based have been corrected and satisfactory evidence of this fact has been furnished to the Commissioner of Health.”

It does not appear that any disciplinary action will be taken against the nursing home license of the facility that Respondent managed which was the subject of the assessments for uncorrected violations in this case.  The Department did serve notice in November of 1994 that it was initiating proceedings, as required by subdivision 2 of the above discussed statute, to take disciplinary action against the facility’s nursing home license, pursuant to the notices of assessment for noncompliance issued between 1991 and 1993.  However, it has subsequently been determined that no disciplinary action will be taken against the license pursuant to those proceedings.  The Department has determined that all of the violations have been corrected and the facility continues to operate under new ownership.

Nursing Home Administrator Licensure

The legislature has provided directly in the statute for an automatic suspension of a nursing home administrator license for two years following receipt of four or more uncorrected violations in the four highest fine categories.  Minn. Stat. § 144A.04, subd. 6 (a) (2) prohibits nursing homes from employing such administrators for two years after  the violations.  Consequently, the question presented in this proceeding is whether the Board should pile on some additional disciplinary sanctions against Respondent’s license.  The more particular question presented by this motion is whether Respondent should be accorded a hearing prior to deciding whether to impose such additional discipline.

In general, where the statute does not provide an automatic mandatory sanction, disciplinary proceedings against licenses of nursing home administrators involve the exercise of discretion which involves examining numerous considerations and weighing conflicting testimony regarding competence.  Each case is different and determinations are often highly subjective.

No case has been cited by Complainant or uncovered in cursory research in Minnesota or in any other jurisdiction where a summary judgment motion has been granted in a disciplinary proceeding against a licensee involving such discretion.  On the contrary, every case remotely akin to the facts involved here has held that a full hearing is needed at a minimum to carefully examine all of the relevant considerations when occupational licensure hangs in the balance.

For example, the facts in Fair Rest Home v. Commonwealth, Department of Health, 43 Pa. 106, 401 A.2d 872 (Pa. 1979) were very similar to the facts in this case, in several respects.  In that case the court reversed an attempt by a licensing agency to take disciplinary action without a hearing against the facility based solely upon citations for safety violations issued previously by a different agency.  The court stressed that the “clear language of the statute” required a hearing where license revocation is not mandatory.  It pointed out that the considerations in proceedings before a different agency for safety violations are very different from the considerations involved in a license proceeding.  The court’s decision turned largely upon the fact that,

revocation of a nursing home license is not mandatory.  . . .The concerns of the Department, including but not limited to consideration of mitigating factors, . . . require full exposition before the final authority or due process is not met. 

In another case that is similar in many ways, State Department of Health v. Tegnazian, 205 NJ Super. 160, 500 A.2d 398 (N.J. 1985).  The court stressed the importance, in cases involving professionals’ rights to continue their chosen careers, of giving meaningful consideration to all of the evidence relating to the affirmative aspects of the licensee’s record and past demonstrated competence.  If it reversed the Health Commissioner’s order imposing a five year suspension on a nursing home administrator’s license.  The decision of the Commissioner had basically overruled the recommendations of the Administrative Law Judge in that case.  The Judge filed detailed Findings of Fact relating to charges of “misconduct in the operation of a nursing home under [her] jurisdiction” rejecting any disciplinary action against her license more severe than a minor reprimand.  The court’s decision highlights the Administrative Law Judge’s recognition that the charges were based largely on “derogatory information” about the Respondent supplied “by a group of dissident employees whose personal interests would be served by Respondent’s removal from the home.”  The court’s decision was based largely on the Health Commissioner’s failure:

to weigh the positive aspects of Respondent’s overall job performance against the negative.  In our view this was essential to a fair determination. . . .

The hearing in such occupational licensing cases is not simply an unequivocal statutory mandate.  The Minnesota Court of Appeals has held that it is a constitutional right.  Bird v. State Department of Public Safety, 375 N.W.2d 36 (1985).  Several courts have held that the hearing is essential to upholding the exceedingly broad discretion which the legislature has delegated to licensing agencies.  Poskanzer v. Whalen, 365 N.Y.S.2d 67 (N.Y. 1975); Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa 56, 373 A.2d 748 (Pa 1977); and Erie Care Center v. Ackerman, 5 Ohio App. 3d 102, 5 Ohio BR 216, 449 N.E.2d 486 (Ohio 1982).  Note that the discretion allowed this licensing agency in Minnesota is particularly broad, including potential revocation for any “acts of misconduct in the operation of a nursing home” or failure “to exercise true regard” for the welfare of patients.

Hearings also provide a safeguard against the potential abuse of this broad discretion by overzealous regulators, such as encountered in Koelbl v. Whalen, 63 App Div.2d 408, 406 N.Y.S. 2d 621 (N.Y. 1978).  In that case the court overturned a penalty imposed on a nursing home where there was evidence that it was imposed in retribution for the operators’ asserting their rights, where they refused to sign a stipulation admitting the charged violations and surrendering their appeal rights.

 HLK