11-3101-15141-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE VETERANS HOMES BOARD

 

 

In the Matter of the Appeal of the Discharge of J.E. from the Minnesota Veterans Home – Hastings

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

 

Administrative Law Judge Barbara L. Neilson conducted a hearing in this contested case proceeding beginning at 10:00 a.m. on February 19, 2003, in the conference room of the Minnesota Veterans Home at Hastings, Minnesota.

 

          Donald E. Notvik, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, Minnesota 55103-2106, represented the Minnesota Veterans Home – Hastings, 1200 East 18^th Street, Hastings, Minnesota  55033-3680.  Lisa Hollingsworth, Attorney at Law, Southern Minnesota Regional Legal Services, Inc., 16174 Main Avenue, Prior Lake, Minnesota  55372, represented J.E., the Resident.  The OAH hearing record closed on April 24, 2003, when the Home notified the Administrative Law Judge that it would not be filing an additional submission.

 

NOTICE

 

          This Report is only a recommendation to the Minnesota Veterans Homes Board (“the Board) and not a final decision.  The Board will make its final decision after reviewing this report and the hearing record.  In making that decision, the Board may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation that appear in this report.

 

Under Minnesota Law,[1] the Board may not make its final decision until after the parties have had access to this Report for at least ten days.  During that time, the Board must give any party adversely affected by this Report an opportunity to file objections to the Report and to present argument supporting its position.  Parties should contact Stephen Musser, Executive Director, Minnesota Veterans Homes Board, Veterans Service Building, Room 122, 20 West 12th Street, St. Paul, Minnesota 55155, telephone (651) 296-2076, to find out how to file objections or present argument.

 

The record of this proceeding closes upon the filing of exceptions to the report and the presentation of argument to the Board, or upon the expiration of the deadline for doing so.  The Board must notify the parties and the Administrative Law Judge of the date on which the record closes.  If the Board fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision.[2]

 

STATEMENT OF THE ISSUE

The issue presented in this case is whether the Veterans Home should discharge the Resident because it is unable to meet the care needs of the Resident as determined by the utilization review committee, as required by Minnesota R. 9050.0200, subp. 3, item C. 

 

          Based upon the record in this matter, the Administrative Law Judge makes the following:

FINDINGS OF FACT

 

1.              The Resident is a 55-year-old veteran of the armed forces of the United States.  Hospital records dated April, 2002, indicate that the Resident’s diagnoses have included a possibility of major depression, dysthymia, bipolar disorder, schizoaffective disorder, somatoform disorder, noncompliance, personality disorder, and alcohol abuse.[3]  A summary prepared by the psychologist in the Veterans Home in January of 2001 states that the Resident exhibits symptoms of a mood disorder with manic symptoms at times (diagnosed as Bipolar I), which is exacerbated by overuse of caffeine and fasting; Personality Disorder not otherwise specified, with histrionic and antisocial traits; Obsessive-Compulsive Disorder (relating to grooming, appearance and order in his room); Factitious Disorder (has caused injuries to himself and has been non-compliant with physician’s orders, prolonging physical problems, in a possible attempt to obtain pain medication); Bulimia Nervosa (fears getting fat, doesn’t like eating with others, and restricts food intake for days at a time, then binges); Opioid Abuse (seeking opiates for pain in neck, ankle and shoulder); and Alcohol Dependence without physiological dependence (uses alcohol when he is not able to acquire opiates)[4]  

2.              On or about March 7, 2000, the Resident was admitted to the Veterans Home in Hastings, Minnesota.  The Veterans Home is a boarding care facility, not a nursing home.  At that time, the Resident signed an Admission Agreement under which the Veterans Home agreed to provide him with routine nursing and emergency nursing or domiciliary care.  He, in turn, agreed to pay the Veterans Home a monthly maintenance charge.  The Agreement indicated that the Home would assess the Resident’s medical condition and assign him to a level of care according to the Minnesota Department of Health’s case mix system.  The Resident was advised that the Home would “review your medical condition regularly to determine whether your medical need continues to exist and whether we are able to continue to meet your medical needs.”  The Agreement also recognized that the Resident has the right to refuse medical treatment and noted that the Resident would be “advised of the possible physical and psychological consequences of [his] refusal of medical treatment, including . . . the Home’s inability to meet [his] care needs.”[5] 

3.              During his stay at the Home, the Resident has hadissues with the use of alcohol and other substances, depression, and food intake; has been noncompliant in taking medication; and has missed or cancelled numerous appointments despite attempts by the Home to make referrals or intervene (including appointments with pain clinics, hospitals, treatment programs, and medical doctors).[6]  These issues are detailed in the Findings below.

4.              The Resident has missed medical appointments or failed to cooperate with his medical treatment on numerous occasions.  Notes prepared by the Resident’s psychologist indicate that, prior to January 27, 2001, the Resident missed seven appointments with Dr. Deiperink (the Home’s psychiatrist), three eyeglass appointments, and seven x-ray, ortho, and neurosurgery appointments.[7]  The Resident refused to undergo lab work ordered by a doctor on September 12, 2001; refused to allow his vital signs to be taken on February 18, 2002; and refused to sign a release of information for a doctor and psychiatrist on March 15, 2002.  He failed to keep medical appointments on March 7, 2002 (psychiatrist); May 22, 2002 (physician); May 23, 2003 (psychiatric care at VAMC); June 13, 2002 (psychiatric appointment); August 12, 2003 (mental health center appointment with Dr. Mohan); September 4, 2003 (Home’s psychiatrist and Dr. Jones); and January 2, 2003 (Dr. Olson, his primary care physician).[8]  The Resident skipped medications on three days in December of 2000, 19 days during January of 2001, and 14 days during February of 2001.[9]  He also refused medication on February 14, 2002 (antibiotic for sinus infection); February 22, 2002; March 8, 2002 (refused all medications but Paxil); April 18, 2002 (psychiatric medications); June 2, 2002 (anti-depressant medications); June 12, 2002 (anti-depressant); and June 17, 2002 (all medications except Oxycodone); and August 27, 2002.[10] 

5.              The Resident made threatening statements to peers, community members, and Home staff on January 19, 2001, February 5, 2001, February 7, 2001, February 9, 2001, March 3, 2001, and March 5, 2001.[11]

6.              The Resident has also exhibited symptoms of an eating disorder during his stay at the Home.  For example, the Resident reported not eating or refused to eat on February 14, 2002, May 9, 2002, May 10, 2002, May 11, 2002, May 12, 2002, May 14, 2002; May 30, 2002; and June 4, 2002.  He made vague comments about starving himself on May 15, 2002.  The Resident was noted to be continuing to binge and purge on May 21, 2002.[12]  He has trouble eating in the cafeteria at mealtimes because he doesn’t like to eat around people.  He is also concerned about his weight and reports a fear of getting fat.[13]

7.              A Level of Care Review is a meeting of a resident and an interdisciplinary team at the Home at which the social worker takes the lead.  The meeting is held to discuss problem areas and things that the resident can do to ensure that his level of care falls within the parameters of the Home, and to let the resident know that his or her continued stay at the Home is under review.  A form is generated and provided to the resident.  The care plan is also discussed with the resident at that time, but the resident does not get a copy of his care plan unless requested.  Care plans are, however, discussed with residents at periodic care plan meetings.  The Level of Care Review form used by the Home contains the following standard introductory language: 

Some of your behaviors indicate a need for additional support from the Hastings Veterans Home (“Home”).  Help is available from staff members to change your behaviors so that continued stay at the Home is possible.  At times limitations or restrictions on behavior might be recommended in order to help you stay here.  These will be discussed with you and your advocate or representative.  If your behaviors become or continue to be unsafe, or are beyond the Home’s ability to continue to care for you, then, based upon a review by the Home’s Utilization Management Committee, you may be subject to discharge.[14]

8.              A Level of Care Review was held on July 25, 2000, to discuss an incident in which the Resident was alleged to have hit a peer,[15] as well as prior incidents of threatening or aggressive behavior toward peers, staff, and others (including a December 20, 2000, incident of aggressive behavior at the Allina Clinic that resulted in the Resident being banned from the Clinic).  The resolution discussed was for the Resident to avoid the particular peer involved in the July 25, 2000, incident and meet with the social worker three times.  The Resident in fact met with the social worker one time on August 15, 2000, to discuss anger management issues.[16]

9.              A second Level of Care Review was held on October 23, 2000, to discuss problems with the Resident’s use of alcohol and non-prescription medications, taking of prescribed medications, signing of release of information forms, complying with treatment recommendations and keeping appointments with the VA psychiatrist and others.[17]

10.          Records maintained by the Home note that the Resident smelled of alcohol on December 15 and December 21, 2000.[18] 

11.          The Resident was involved in an altercation with another resident on December 28, 2000.  Later that morning, the Resident was noted to smell of alcohol.  He refused an alcohol/saliva test and was taken to Dakota County Receiving Center (“DCRC”) (a detoxification center).[19] 

12.          A third Level of Care Review was conducted on January 9, 2001, with respect to the Resident’s behavior and threatening statements to a peer on December 28, 2000, and his use of alcohol necessitating that he be sent to the Dakota County Receiving Center for detox on that date.  Care Plan changes made as a result of the Level of Care Review to allow the Resident to live at the Home safely included the Resident complying with all medications as directed by Minneapolis VAMC psychiatrist, agreeing to alcohol saliva test at staff request, and not making violent aggressive statements to peers.  The Resident refused to sign the Level of Care Review form.[20]

13.          A fourth Level of Care Review was conducted on January 17, 2001, with respect to a verbal altercation with a peer during which the Resident threatened to “give [the peer] a facelift.”  The team discussed the fact that the Resident remained non-compliant with his individual care plan and continued to display violent and aggressive or threatening behaviors to staff and peers.  Care Plan changes again included complying with medications directed by the psychiatrist, agreeing to alcohol saliva tests, and not making violent statements or engaging in physical altercations with peers.  The Resident was warned that failure to comply with these expectations would result in discharge from the Home.  The Resident refused to sign the Level of Care Review form.[21]

14.          Notes relating to the Resident maintained by the Home indicated that the Resident smelled of alcohol on January 3, 2001, February 15, 2001, and February 16, 2001, and refused to take alcohol/saliva tests on February 15, 2001, and March 3, 2001.[22] 

15.          The Resident was admitted to DCRC on August 27, 2001, after he took Paxil while using alcohol.[23]

16.          On September 14, 2001, the Resident was seen with a brown paper bag containing a bottle of alcohol.  He had taken Darvocet earlier in the day.[24] 

17.          A fifth Level of Care Review was conducted on September 20, 2001, after the Resident’s episode of drinking and referral to detox in August.  Care Plan changes included avoiding the use of alcohol, agreeing to alcohol screens at staff request, seeing chemical dependency staff weekly, and weekly AA participation if another episode of alcohol use occurred.  The Resident was warned that failure to comply with these requirements would result in his involuntary discharge from the Home.  The Resident refused to sign the Level of Care Review form.[25]

18.          On February 28, 2002, a Special Care Team meeting was held to discuss the Resident’s refusal to sign release of information forms and not keeping his doctor appointments.   The Care Team recommended that the Home determine that it was unable to meet the Resident’s care needs due to non-compliance.[26]

19.          A psychology progress note dated March 4, 2002, indicates that the Home’s psychologist met with the Resident during February of 2002 to encourage him to keep his medical appointments, particularly at the pain clinic.  The Resident did not, however, keep any medical appointments between the time the psychologist saw him and March 4, 2002.[27]

20.          A sixth Level of Care Review was conducted on or about March 7, 2002, after the Resident failed to take medicines as prescribed and failed to have consistent medical follow-up in accordance with his care plan.  Care Plan changes included avoiding all use of alcohol, taking medicines as prescribed, keeping all medical appointments with oversight-approval provided by his primary care physician, and avoiding self-injurious behaviors.  The Resident was warned that failure to comply would result in involuntary discharge.  The Resident refused to sign the Level of Care Review form.[28]

21.          On April 9, 2002, the Resident used alcohol and tested positive on a breathalyzer.  He refused to go to DCRC.  The Home called police and police escorted the Resident to DCRC for admission.[29]

22.          A search of the Resident’s room on April 10, 2002, revealed a bottle of vodka.[30]

23.          On April 11, 2002, the Resident signed a contract to go to St. Cloud Chemical Dependency treatment program, remain free from all mood-altering chemicals, and attend AA meetings and group meetings at the Home.  The Resident did not comply with any of these provisions.[31] 

24.          On April 17, 2002, the Resident was smoking and drinking in his room at the Home.  He was sent to DCRC for detoxification.  A search of his room reveled a cup with water in his wardrobe containing six cigarette butts.[32]

25.          The Resident was admitted to United Hospital on April 19, 2002, after refusing to take psychiatric medications while he was at DCRC and expressing suicidal intent and increased depression. [33]  During his stay at United, Paul Goering, M.D., indicated that the main focus of his intervention with the Resident was “his need for consistent follow up with a care team that is coordinated.”  Dr. Goering noted that the Resident’s “difficulties have always included that he has not followed up with medical providers as often as possible and restricted their access in communicating with each other, and has declined treatments that would be appropriate until his difficulties are overwhelming.”  Dr. Goering also stated, “It has always been my concern that both pain medication and alcohol are used in manners that are concerning.  However, he has failed to meet criteria for either abuse or dependence.  His need for abstinence, however, is clear.”  He went on to state that, “Although the VA Home was very strongly in favor of having the patient treated at the VA, I could not adequately support the diagnoses of substance abuse or dependence to make a primary referral.  However, abstinence from substances is absolutely essential, and [J.E.] agrees to this.”[34]

26.          On April 23, 2002, the Care Team met with the Resident at United Hospital.  The Care Team recommended the Resident for a higher level of care, since the Home was unable to monitor him more than two times a day.  A transfer packet for a higher level of care was sent to the Veterans Home in Minneapolis for possible admission.[35]

27.          The Home’s Utilization Management Committee met on May 2, 2002, to discuss the Resident.  Those present at the meeting included the Charles “Chip” Cox, the Home’s Administrator; Dr. Korchik, the Home’s Medical Director; Connie Ball, R.N., the Home’s Administrative Supervisor/Clinical Coordinator, Dick Tracy, one of the Home’s Social Workers; Pat Gosz, the Home’s Social Services Supervisor, and Paula Zajac, DON, the Nursing Supervisor.  The minutes indicate that Rita Hanson, MRT-1, was present as the meeting “recorder.”  The Resident was not present at this meeting or at later meetings of the Utilization Management Committee.  The purpose of the meeting was to consider the recommendation of the Care Team that the Resident be discharged.  The minutes of the meeting indicate that the Committee discussed the Resident’s dual diagnosis (mental illness and chemical dependency) and the fact that he was currently considered a Case Mix C, which was outside the level of care of the Home.  The Committee noted that the Resident was admitted to detox on April 9 and April 17, 2002, was suicidal, was hospitalized at United Hospital, and United now wanted to discharge him back to the Home.  The Committee minutes also indicate that there was evidence that the Resident was smoking in his room while intoxicated which put the Home at an increased fire risk.  The Committee noted that “[i]t is felt that MVH-Hastings cannot provide a safe setting for this resident because of the intensity of monitoring he is thought to require” and the “interdisciplinary team feels that his chemical dependency needs to be addressed in a formal treatment program.”  The meeting minutes further note that “[t]he Care Team recommends that this resident receive treatment for a dual diagnosis.  He needs to be well controlled psychiatrically and to successfully complete a CD [chemical dependency] program before being considered for transfer back to MVH-Hastings.”  The minutes indicate that an interagency transfer packet had been sent to the Minneapolis Veterans Home for possible transfer of the Resident to that facility.[36]  

28.          On May 3, 2002, the Veterans Home in Minneapolis refused to accept the Resident for nursing care admission because he did not fall within their guidelines.  As a result, the Resident was transferred back to the Hastings Veterans Home upon his release from United Hospital.[37]

29.          The Resident was readmitted to the Home on May 6, 2002.  A special care plan meeting was held at which the Care Team decided to change the Resident’s room, increase monitoring, and have the Resident sign a behavior contract.  The Resident refused to sign the behavior contract.[38]  The Resident was on frequent checks for health and safety after he returned from the hospital, including caffeine intake, food intake, sleep time, pain and depression levels, smoking in his room, use of alcohol, and presence of suicidal thinking.  He consistently measured high on the levels of pain and depression.[39] 

30.          On May 16, 2002, another Utilization Management Committee meeting was held regarding the Resident and the recommendation for discharge.  The minutes indicate that this meeting was attended by Mr. Cox, Dr. Korchik, Ms. Ball, Mr. Tracy, Ms. Gosz, Ms. Zajac, Patricia Winstead (social worker), and Dr. Pam Cook (psychologist), as well as Ms. Hanson, the medical records technician.  The minutes of this meeting indicate that the Committee noted that the Resident “has significant medical problems that include depression (necessitating recent psychiatric hospitalization), CD issues, schizo-affective disorder, somatization disorder, chronic sinusitis and chronic pain syndrome” and expressed concern regarding “adequate monitoring of his use of chronic prescription opioids in view of his history of severe alcohol intoxication.”  The Committee also noted that the Resident had “a long history of noncompliance with his care plan” and stressed that, in his first week back after hospitalization, he refused to consistently allow alcohol swab testings, refused to consistently take meals in the dining room, was drinking excessive caffeinated beverages, and had been argumentative with staff.  The minutes note that “[t]he Care Team recommends that it would be in the resident’s best interest to be referred to a more structured program that can better deal with his morbidities if he will not comply with his care plan at this facility.”  The minutes further state that the Care Team had updated the Resident’s behavior contract, which the Resident would be asked to sign, and would issue a Level of Care notice to notify the Resident that he must comply with his Care Plan to remain in the Home, and failure to comply would result in a recommendation to administration to issue a Notice of Involuntary Discharge from the Home.[40]  The Committee meeting was followed by a meeting between the Resident, the Home’s medical director, psychologist, and social worker to review expectations from the Utilization Management Committee meeting.  The Resident was informed that noncompliance would result in his involuntary discharge from the Home.[41] 

31.          The Home’s psychiatrist refused to refer the Resident to a St. Cloud dual diagnosis program on May 17, 2002, because the psychiatrist did not believe that the Resident would benefit given his level of non-compliance.  The Dakota County “Prescreen” Team saw the Resident on May 17, 2002, and determined that there was not a sufficient basis to commit or hold him.  The Resident denied that he had any kind of alcohol or other drug abuse problem.[42] 

32.          On May 21, 2002, a Special Care Team Review was held relating to the Resident.  It was noted that the Resident continued to binge and purge and had refused some doses of medicines, but had complied with health and safety checks and alcohol swabs.  The Care Team continued to recommend involuntary discharge.[43]

33.          On May 24, 2002, the Care Team amended the Resident’s care plan to reduce monitoring to every 8 hours and alcohol swabs to two times daily.[44]

34.          On May 29, 2002, the Resident received a Level of Care Review Notice for non-compliance with his care plan.  The Resident was informed that he was expected to comply with his May 16, 2002, behavioral contract and that failure to do so would result in his involuntary discharge from the Home.  The Resident refused to sign the Level of Care Review form.[45]

35.          On May 30, 2002, a Special Care Team Review was conducted regarding the Resident.  It was noted that the Resident continued to refuse tray service, his pain and depression levels were constantly reported to be above 6, and the Resident stayed up most nights and continued to drink caffeine.  The Care Team recommended discharge to the Utilization Management Committee based on Resident non-compliance.[46] 

36.          The Utilization Management Review Committee met on May 30, 2002.  The meeting was attended by Mr. Cox, Dr. Korchik, Ms. Ball, Mr. Tracy, and Ms. Zajac, as well as Earleen Odenbreit, a medical records technician.  Two social workers (Oksana Hawryluk and Bob Walker), the Social Services Supervisor (Ms. Gosz), a Chemical Dependency Counselor (Lois Freiermuth), a QA Coordinator (Dottie Chamberlain, RN), and a psychologist (Dr. Cook) were reported as members of the Committee who were absent.  The minutes reflect that the Committee again discussed the Resident’s diagnosis and Case Mix C status, as well as the other information discussed during the May 16, 2002, meeting.  The meeting minutes noted that, on May 29, 2002, the Resident received a Level of Care Review Notice for non-compliance with his care plan and was found to have been non-compliant with three of the nine items listed on his behavior contract, and his care team was concerned that he had a eating disorder due to his recent weight loss and eating pattern.  The Committee recommended that the Resident’s Care Team look into facilities that will better meet his care needs, but that the Resident remain in the Home in the meantime.  The Committee warned that “[a]ny use of alcohol will result in administration issuing him a Notice of Involuntary Discharge.”  The minutes indicated that the Home’s Medical Director would meet with the Resident to re-enforce compliance with his care plan.[47]

37.          On May 31, 2002, the Special Care Team recommended that the Resident eat one meal per day.  The Team decided to discontinue monitoring for caffeine, but continue monitoring for pain, depression, alcohol, and sleep.[48]

38.          On June 7, 2002, the Special Care Team met for review and update concerning the Resident.  The Team changed the frequency of certain aspects of monitoring of the Resident in ways that are not specified in the chronological listing provided at the hearing.[49] 

39.          A psychology progress note dated June 10, 2002, indicates that the frequent health and safety checks on the Resident were gradually discontinued as the results stabilized.  The progress note also states that the Resident did attend an appointment at the Bethesda Pain Clinic but refused the Clinic’s recommendations for shots in his neck. [50]

40.          On July 12, 2002, the Care Team met to review the Resident’s request for decreased frequency of alcohol monitoring.  The Care Team recommended that alcohol monitoring continue as it had been for at least one more month.[51]

41.          On July 16, 2002, nursing observed slurred speech and the strong odor of alcohol.  The Resident’s alcohol screen was positive.  After the Resident refused to go to detox, the police escorted him there.[52]

42.          On July 16, 2002, the Home’s Special Care Team recommended to the Home’s Utilization Management Committee that the Resident be discharged.  The Utilization Management Committee met the same day and recommended involuntary discharge of the Resident.  The Resident’s psychiatrist was informed of the recommendation.  She had no new suggestions relating to the Resident’s status.[53]  The minutes of the July 16, 2002, meeting of the Utilization Management Committee were not provided as an exhibit, and there was no testimony concerning who was present at the meeting. 

43.          On July 18, 2002, the Home issued a discharge order indicating that the Respondent was to be discharged effective August 18, 2002, because the Home “is unable to meet [his] care needs as determined by the Utilization Management Committee, according to MN Rule 9050.0200, Subpart 3 C-Criteria for Continued Stay.”  The discharge notice included information concerning the Resident’s right to appeal the discharge order.  Documentation was attached to the discharge order reflecting behaviors and medical interventions for the Respondent from August 27, 2001, to July 16, 2002.[54]  The matters reflected in the documentation were considered by the Utilization Management Committee in determining that the Resident should be discharged from the Home.[55] 

44.          On July 18, 2002, the Resident appealed the discharge.[56]

45.          On July 20, 2002, the Resident was again escorted by Hastings Police to Detox.[57]

46.          On September 10, 2002, the Resident ingested Flonase, a sinus inhalant, by pouring it in his milk and drinking it.[58] 

47.          On September 26, 2002, the Utilization Management Review Committee met regarding the Resident.  The meeting was attended by Mr. Cox, Dr. Korchik, Ms. Ball, Ms. Gosz, Dr. Pam Mueller (the Home’s psychologist, who was formerly known as Dr. Pam Cook), Ms. Odenbriet, and Denise Buss, ANP.  The minutes indicate that committee members who were absent included Oksana Hawryluk, social worker; Bob Walker, social worker; Lois Freiermuth, CD Counselor; and Dottie Chamberlain, RN, QA Coordinator.  The minutes of the meeting reiterate past events and state that the Home’s Medical Director did, in fact, meet with the Resident to re-enforce compliance with his care plan after the May 30, 2002, Utilization Management Committee meeting.  The minutes note that the Care Team believes that the Resident may be drug seeking because he had seen several different physicians and the Home’s nurse practitioner during the past week and had reported drinking Flonase.  The minutes also noted that the Respondent had canceled all follow-up appointments concerning a recent diagnosis of mild pancreatitis and had been taken to detox for alcohol use once again on July 20.  The Committee continued to recommend discharge.  The Home’s psychologist was directed to look into petitioning the court for commitment to a psychiatric hospital or placement in a Rule 36 facility.  The minutes indicated that Dr. Korchik, the Medical Director, and Denise Buss, ANP, would meet with the Resident to encourage him to see a psychiatrist from the VA Hospital and limit himself to one primary physician.[59] 

48.          On October 18, 2002, the Veterans Home served the Notice of and Order for Hearing that began this administrative appeal on the Resident.  The Notice of Hearing asserted that the Resident should be discharged because he exhibits behavior and requires a level of care beyond that which the Home is able to provide.  The date originally scheduled for the hearing (November 21, 2002) was continued based upon the joint request of the parties in order to allow the Respondent an opportunity to enter a treatment program.  The Respondent initially agreed to enter a treatment program in St. Cloud for dual diagnosis, but later complained of neck and shoulder pain and said that he could not go.  A second attempt was made to send the Resident to the program but, on the day he was to leave, he broke his toe and refused to go into the St. Cloud treatment program due to the injury. The Resident called the St. Cloud program on a later date.  Because the Resident told the St. Cloud program that he had not had anything to drink since July of 2002 and did not consider drugs or alcohol to be a problem for him, they did not accept him into the program.  The St. Cloud program requires that those entering the program desire to do so and be treated for a dual diagnosis, and will not accept them if the person does not wish to enter.  The hearing was later rescheduled for February 19, 2003.[60]

49.          On January 5, 2003, another resident alleged that the Resident purchased alcohol at a liquor store.  There is no evidence, however, that the Resident tested positive for alcohol consumption around that time.[61]

50.          Although the Resident was asked to obtain a private chemical dependency screening approximately one month before the hearing, he has told the Social Services Director that he has not been able to accomplish that.  A Rule 25 assessment of the Resident’s chemical use was conducted in approximately 2000 but the pre-petition screening failed.  Someone from Ramsey County also met with the Resident at detox in approximately 2001 but did not find sufficient evidence to establish a need for commitment.[62]

51.          Although the Resident was not present at meetings of the Utilization Management Committee, the decisions of the Committee are given to the Resident.  In addition, the Home’s Medical Director, Dr. Korchik, spoke with the Resident about the Committee and the status of his staying at the Home on one or two occasions.[63] 

52.          The Home arranged an interview with the Minneapolis Veterans Home boarding care because it would be closer to other resources in the Twin Cities where the Resident could access other medical care, but the Resident declined to go.  He also is not interested in pursuing a housing-only situation in Cannon Falls.  The Home believes that the St. Cloud VA dual diagnosis program is another option for the Resident.  The Resident has twice declined the opportunity to see Dr. Fox, the Chief of Psychiatry, for an independent assessment to be used as the basis for a referral to the St. Cloud VA.[64]   

53.          These Findings are based on all of the evidence in the record.  Citations to portions of the record are not intended to be exclusive references.

54.          The Memorandum that follows explains the reasons for these Findings, and, to that extent, the Administrative Law Judge incorporates that Memorandum into these Findings.

55.          The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.

Based upon these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

 

1.              Minnesota law[65] gives the Administrative Law Judge and the Board authority to conduct this proceeding, to consider the issues raised here, and to make findings, conclusions, and orders.

2.              The Resident received proper notice of his proposed discharge and of the time and place of the hearing in this administrative appeal.

3.              The Veterans Home and the Board have complied with all of the legal requirements for conducting this proceeding.

4.              Under Minnesota R. 9050.0200(2)(b), a resident of a boarding care facility may be discharged voluntarily or involuntarily from a board-operated facility.  The grounds for discharging a Resident are set forth in Minnesota R. 9050.0200, subp. 3.  Under item (C) of subpart 3, one ground for discharge is met if “the board-operated facility is unable to meet the care needs of the resident, as determined by the utilization review committee according to part 9050.0070, subp. 3 or 4 . . . .” 

8.                Under Minnesota law,[66] the Veterans Home has the burden of proving by a preponderance of the evidence that it is unable to meet the care needs of the Resident. 

5.              Minn. R. 9050.0070, subd. 3, specifies as follows:

The decision about admission or continued stay in a board-operated facility licensed to provide boarding care must be based on the facility’s ability to meet the care needs of the person.  A person whose care needs can be met by the board operated facility must be admitted, placed on the waiting list, or retained as a resident if the admissions committee or utilization review committee determines that the person meets the criteria in items A to N.  A person whose care needs cannot be met must be denied admission or continual stay if the admissions committee or utilization review committee determines the person does not meet the criteria in items A to N.

Criteria A to N include the following:

A.             The person must have or be assigned a case mix classification of A, B, D, or E under the case mix system established by parts 9549.0058, subpart 2, and 9549.0059 and Minnesota Statutes, section 144.072.

B.             The person must have a medical and, if appropriate, psychiatric diagnosis from the attending physician indicating placement in a boarding care facility is a medical necessity.

C.             The person’s attending physician must document the person’s need for the services provided in a boarding care facility. . . .

* * *

F.             The person has the right to participate in establishing the person’s individual care plan.  Residents must be advised that exercising their right to refuse care may lead to their discharge if the facility is unable to care for them under part 4655.1500, subpart 2.  Continuing cooperation must be measured as specified in the care plan review process in part 9050.0300.

* * *

I.               The person must require no more than twice daily face-to-face monitoring by the nursing staff of the boarding care facility.  For continued stay, face-to-face monitoring for special medical needs may exceed twice daily for up to five days with approval of the director of nursing or the assistant director of nursing of the boarding care facility.

* * *

L.                A person who has an active substance use disorder must be evaluated by an attending psychologist or psychiatrist.  The evaluation must include an assessment of the person’s chemical health needs, the current severity of the person’s disorder, and whether the board-operated facility can meet the care needs of the person.

* * *

9.                Minn. Stat. § 198.007 specifies that the Veterans Homes Board “shall create a utilization review committee for each home comprised of the appropriate professionals employed by or under contract to the home.”  Under the rules promulgated by the Board, the administrator of a facility appoints the Utilization Review Committee,” which must be composed of “two physicians and at least one of each of the following professionals:  a registered nurse, the administrator or the administrator’s designee, a social worker, and a medical records technician, who shall not participate in a voting capacity.”  (Emphasis added.)[67]  The rule further requires that “[t]he administrator or the administrator’s designee, one other committee member, and at least two physicians must be in attendance to hold a meeting and to take action.”  (Emphasis added.)[68]  The duties of the Utilization Review Committeeinclude reviewing “the need for discharge of all residents according to the United States Department of Veterans Affairs, this chapter, and Department of Health, nursing and boarding care criteria specified in parts 4655.0400, 4655.0500, 4544.0700, 4658.0030, and 4658.0140.”  The committee is also responsible for reviewing each resident’s case record on an annual basis to “determine the facility’s ability to meet the resident’s care needs;” assessing the resident’s “willingness to cooperate with an individual care plan,” “obey facility rules in chapter 9050,” and the “appropriateness of the resident’s stay;” and “develop[ing] and update[ing] the discharge component of the individual care plan for each resident, as appropriate.”  The rule also requires that decisions that are made by the Committee must be by majority vote, and decisions about residents must be based on the facility’s ability to meet the care needs of the resident or applicant according to part 9050.0070, subpart 3 or 4.[69] 

10.            Because the Utilization Review Committee at the Home apparently did not include two physicians, it was not proper for the Committee to meet or take action concerning the Resident.  Accordingly, the Committee’s recommendation to discharge the Resident and the resulting Notice of Involuntary Discharge regarding the Resident were improperly issued, and the Home has not borne its burden to show that involuntary discharge is warranted because the Home cannot meet the care needs of the Resident. 

11.          The Memorandum that follows explains the reasons for these Conclusions, and, to that extent, the Administrative Law Judge incorporates that Memorandum into these Conclusions.

12.          The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.

          Based upon these Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

 

          The Administrative Law Judge HEREBY RECOMMENDS that the Board reverse the Administrator’s Order involuntarily discharging the Resident from the Minnesota Veterans Home – Hastings. 

Dated:  April 25, 2003

                                                                       __________________________________

                                                                        BARBARA L. NEILSON

                                                                        Administrative Law Judge

 

NOTICE

 

          Under Minnesota law, the Board must notify the parties of the date on which the record of this contested case proceeding closes[70] and must serve its final decision upon each party and the Administrative Law Judge by first-class mail.[71]

 

MEMORANDUM

 

It is apparent that the Resident has had problems in the areas of compliance with medication and medical treatment, abstinence from alcohol and chemicals, depression, and food intake.  The Resident’s medical issues are complicated by his psychological issues and his use of alcohol and other substances.  It is also clear that the Resident failed to fulfill certain obligations under his care plan and that he at times during his stay at the Home has exhibited behaviors and required cares that necessitate a higher level of monitoring than the Home, which is merely a boarding care facility, may provide on a continual basis.[72]  While the Resident contends that no one has ever gone over his care plan with him, he acknowledged during the hearing that he has some understanding of what the Home is requiring in terms of abstinence from any mood-altering drugs and following through with psychiatric needs.  Moreover, it is clear that the consequences of failing to cooperate with his care plan were communicated to the Resident in conversations with the Medical Director as well as through the issuance of numerous Level of Care Review Notices.  The Resident also was warned on several occasions that he would be discharged from the Home if he failed to cooperate.  The evidence supplied by the Home was less clear concerning the basis for the case mix classification of “C” which it contends is assigned to the Resident and places him outside the scope of care of a boarding care facility;[73] whether the Resident currently requires more than twice daily face-to-face monitoring by the nursing staff over periods of more than five days; or whether he currently suffers from an active substance use disorder based on evaluation by an attending psychologist or psychiatrist. 

 

However, it is not necessary for the Administrative Law Judge to weigh all of the evidence and reach a determination concerning whether the discharge order was adequately supported by the evidence because the order was not issued by a properly-constituted Utilization Review Committee.  It is apparent that the Home’s Utilization Review Committee did not in this instance include two physicians, as required under Minnesota R. 9050.0400, subp. 2.  The minutes of the four Utilization Review Committee meetings that were provided as exhibits in this matter show that none of those Committee meetings were attended by two physicians.  While no minutes were provided with respect to the Committee meeting in July of 2002 that resulted in the initial recommendation for discharge,[74] it is fair to assume that the composition of the Committee at that meeting was the same as at the prior and subsequent meetings.  The only physician on the Committee was Dr. Korchik, the Home’s Medical Director.  The rules of the Veterans Homes Board, as set forth in Minnesota R. 9050.0400, subp. 2, make it clear that “at least two physicians” must be in attendance at a committee meeting, along with the administrator or his/her designee and at least one other committee member, to “hold a meeting and to take action.”  The Committee is responsible under the rules for reviewing the necessity and appropriateness of the involuntary discharge of a resident.  The requirement that at least two physicians serve on the committee would provide additional assurance that a resident’s needs had been carefully evaluated before the Committee forwarded a recommendation that he or she should be discharged because the facility could not meet those needs.  Accordingly, the Administrative Law Judge has no choice but to find that the Committee’s recommendation for discharge of J.E. and the resulting order of discharge should be reversed.[75] 

B.L.N.