V. McGraw, Jr.
Employment Law Center Attorney General
Parkersburg, West Virginia Doren Burrell
Attorney for the Appellant Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE McGRAW dissents.
1. On appeal of an administrative order from
a circuit court, this Court is bound by the statutory standards contained
in W.Va. Code § 29A-5-4(a) and reviews questions of law presented de
novo; findings of fact by the administrative officer are accorded deference
unless the reviewing court believes the findings to be clearly wrong. Syl.
Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
2. Under the West Virginia Administrative Procedures Act, W. Va. Code ch. 29A, appellate review of a circuit court's affirmance of agency action is de novo, with any factual findings made by the lower court in connection with alleged procedural defects being reviewed under a clearly erroneous standard. Syl. Pt. 1, Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W.Va. 286, 517 S.E.2d 763 (1999).
3. 'Evidentiary findings made at an administrative
hearing should not be reversed unless they are clearly wrong.' Syl. pt. 1, Francis
O. Day Co. v. Director of Environmental Protection, 191 W.Va. 134, 443
S.E.2d 602 (1994). Syl. Pt. 1, Stewart v. Board of Examiners for
Nurses, 197 W.Va. 386, 475 S.E.2d 478 (1996) .
Patricia A. Williams appeals from the August 29, 2002, order of the Circuit Court of Wood County affirming a one-year suspension of her license to practice registered nursing. She challenges the trial court's decision on substantive grounds, asserting that the record does not support the disciplinary action taken against her. In addition, Appellant raises a procedural basis for her appeal based on her attorney's alleged lack of notification and consequent failure to attend the hearing where the lower court's final ruling was adopted. Upon a full review of the record in conjunction with these assignments of error, we find no error and, accordingly, affirm.
The State of West Virginia contracted with the Agency to provide these in- home services pursuant to funding specifications based on the federal government's Medicaid Waiver Program. The Department of Health and Human Resources (DHHR), the state agency in charge of administering the program at this time, (See footnote 1) conducted periodic reviews of the in-home service providers to assure compliance with both state and federal regulations. During one of these reviews in February 1997, DHHR employee Samuel Estel (See footnote 2) randomly selected five of the Agency's clients to review. In his examination of five client files, (See footnote 3) Mr. Estel learned that Ms. Williams had not conducted, as required, monthly reviews of client records. Upon additional inspection of the Agency's personnel files, he determined that two of the homemakers employed by the Agency did not have adequate in-service training hours and three employees did not have specialized training required by the DHHR regulations. (See footnote 4) In visiting two homes where the Agency provided services, Mr. Estel discovered that the in-home file that is required to be present for the use and reference of the homemakers and other service personnel was not present in one home and in the home where such a file was in existence, it had not been updated in a significant period of time.
As a result of Mr. Estel's review in February 1997, he prepared a report summarizing the identified deficiencies. Based on this report, Susan L. Hogg, Mr. Estel's supervisor, notified the Agency on March 10, 1997, of various shortcomings (See footnote 5) discovered with its provision of or documentation of services provided and informed the Agency that a follow-up visit would be scheduled. In April 1997, DHHR performed the follow-up review to verify that the Agency had corrected the noted problems. Upon his return visit, Mr. Estel concluded that while some of the problem areas had been addressed, he found that there was no documentation in one of the client files that any contact had occurred between Appellant and the client since his February 1997 visit. When he inquired regarding documentation reflecting such a visit, Ms. Williams indicated that she would have to locate the requested records. Ultimately, Appellant acknowledged there was a problem, indicating that she had not performed a contemporaneous completion of the required forms. She indicated that she made handwritten notes and later transcribed those notes onto the required paperwork. After being permitted to go home to retrieve those notes, however, Appellant subsequently called Mr. Estel to inform him that no such notes were in existence.
As a result of the April follow-up visit, Ms. Hogg notified the Agency on April 16, 1997, that there were certain remaining deficiencies in need of correction. These continuing issues of compliance apparently led to the Agency's decision to terminate Appellant from its employ. Several additional follow-up visits were conducted by Mr. Estel to assure that the problems identified with the Agency's provision of services had been resolved. As part of those follow-up visits, Mr. Estel and Appellant's replacement _ Debra Hass _ conducted several client interviews with individuals who could not recall having been visited by Ms. Williams during relevant time periods of her employ.
As a result of reports submitted by Mr. Estel and Ms. Hass regarding Appellant's failure to document various matters for which she was responsible, the Board instituted disciplinary proceedings against Ms. Williams. Following a two-day administrative hearing held before Carole A. Lewis Bloom, the hearing examiner concluded that the Board had demonstrated by a preponderance of the evidence that Appellant had improperly, incompletely, or illegibly documented the delivery of nursing care and failed to adhere to established standards in the practice setting to safeguard patient care. Based on these findings, the hearing examiner determined that Ms. Williams was guilty of conduct derogatory to the morals or standing of the profession of registered nursing under the Board's rules and recommended that she be placed on probation for not more than one year.
Upon its review of the record and recommended decision
submitted by the hearing examiner, the Board made several additional factual
findings regarding Appellant's falsification of records, all of which are specifically
referenced to evidence introduced during the administrative proceedings. (See
footnote 6) Based on the hearing examiner's findings plus the additional findings made by the Board upon the existing administrative
record, the Board concluded that Ms. Williams falsified patient records
or intentionally charted incorrectly in violation of 19 W.V.C.S.R. 5.1.18 and
determined that Appellant's licensure should be suspended for a one-year
period. Appellant appealed this decision to the circuit court, who affirmed
the Board's ruling after finding no error. Appellant seeks a reversal of
the lower court's ruling. (See
On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) (See footnote 9) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.
Id. at 590, 474 S.E.2d at 520 (footnote supplied). Applying this standard to a lower court's decision to affirm an administrative decision, we held in syllabus point one of Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W.Va. 286, 517 S.E.2d 763 (1999): Under the West Virginia Administrative Procedures Act, W. Va. Code ch. 29A, appellate review of a circuit court's affirmance of agency action is de novo, with any factual findings made by the lower court in connection with alleged procedural defects being reviewed under a clearly erroneous standard. See also Stewart v. Board of Examiners for Nurses, 197 W.Va. 386, 389, 475 S.E.2d 478, 481 (1996) (recognizing that clearly wrong standard applies to review of administrative evidentiary findings).
With these standards in mind, we proceed to determine
whether the lower court committed error in upholding Appellant's one-year suspension
from practicing as a registered nurse under this state's licensing laws.
Appellant asserts that there is no credible evidence in the record to support the Board's finding that she falsely documented client visits and/or care that she did not perform. She claims that the only evidence presented that possibly suggests fabrication or falsification of records was introduced through the testimony of Mr. Estel regarding two of the Agency's clients (See footnote 10) who, when visited, could not recall having seen Appellant after an initial contact by her. What Appellant fails to mention with regard to this evidence, however, is that the hearing examiner expressly disregarded this testimony based on its hearsay nature and consequent unreliability. (See footnote 11) Instead of relying on the hearsay evidence offered by Mr. Estel, the Board made its conclusion regarding Appellant's falsification of records based on documentation introduced at the administrative proceeding as Board Exhibit Numbers 14 and 16. Those documents were relied upon by the Board to conclude that the record prepared by Ms. Williams' corresponding to a visit to a particular client's home was either fabricated or falsified, because her description of the client visited (See footnote 12) on a specific date was significantly at odds with what was recorded by the homemaker. (See footnote 13)
Pursuant to the provisions of West Virginia Code § 30-7-11
(1965) (Repl. Vol. 2002), the West Virginia Board of Examiners for Registered
Professional Nurses has the power to deny, revoke or
suspend any license to practice registered professional nursing issued or applied
for in accordance with the provisions of this article, or to otherwise discipline
a licensee or applicant upon proof that he or she . . . (f) Is guilty of conduct
derogatory to the morals or standing of the profession of registered nursing[.]
By regulation, conduct which qualifies as derogatory to the morals or standing of the nursing profession has been identified to include the following:
failing to adhere to common and current standards for
professional nursing practice, including, but not limited to standards established
by a national professional nursing organization, nursing research, nursing education,
or the board;
failing to adhere to established standards in the practice setting to safeguard patient care;
falsifying patient records or intentionally charting incorrectly;
improperly, incompletely, or illegibly documenting the delivery of nursing care, including but not limited to treatment or medication; and
knowingly making or filing a false report.
W.Va. R., West Virginia Board of Examiners for Registered Professional Nurses, 19 § 9-5.1 (1994). (See footnote 14)
Upon hearing all of the evidence adduced below, the hearing examiner concluded that:
The Board has proven by a preponderance
of the evidence that the Respondent [Appellant] improperly, incompletely, or
illegibly documented the delivery of nursing care in violation of 19 W.V.C.S.R.
5.1.19 and failed to adhere to established standards in the practice setting
to safeguard patient care in violation of 19 W.V.C.S.R. 5.1.2 by failing to timely
complete all forms required by the Medicaid Waiver Program and by not assuring
that the required documentation was filed in client files at all times.
To that finding, the Board added its conclusion that the Appellant
falsified patient records or intentionally charted incorrectly in violation of 19 W.V.C.S.R. 5.1.18 by documenting on June 12, 1996 that she made a home visit to a client during lunch hours and no homemaker was present. [Ms.] Williams specifically charted client up in chair eating lunch - was in good spirits - no apparent discomfort - talking about soap opera, sleeping without difficulty; no skin breakdown; no edema of lower extremities; states still has back trouble. However, the agency time sheet provides that a homemaker was present in the patient's home during lunch hours.
Upon its review of the Board's action, the circuit court upheld the Board's action, finding that it was supported by the reliable, probative and substantial evidence contained in the whole record made below and further concluding that the Board's findings and conclusions are not clearly wrong, arbitrary or capricious. (See footnote 15) We recognized in syllabus point one of Stewart, '[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.' Syl. pt. 1, Francis O. Day Co. v. Director of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994). 197 W.Va. at 386, 475 S.E.2d at 478. Like the circuit court, our review of this matter is similarly subject to the requirement that we accord deference to the administrative factfinder. See Frymier-Halloran v. Paige, 193 W.Va. 687, 695, 458 S.E.2d 780, 788 (1995) (recognizing that [t]he 'clearly wrong' and the 'arbitrary and capricious' standards of review are deferential ones which presume an agency's actions are valid as long as the decision is supported by substantial evidence or by a rational basis). And, because we similarly determine that the record supports the findings that were made in this matter, we find no basis for reversal on grounds of insufficient evidence. (See footnote 16)
With regard to Appellant's assertion that the lower court's ruling should be reversed on procedural grounds due to her counsel's non-attendance at the final hearing where the trial court announced its rulings, we find no merit to this contention. The hearing was essentially a formality, as the trial court had previously announced its decision to uphold the Board's ruling through letter to counsel. (See footnote 17) In that same correspondence, the trial court requested that a proposed final order be prepared by the Board's counsel and as the Board observes, the Final Order incorporated some changes that were prompted by the Appellant's objections (See footnote 18) to the Board's proposed final order.
Had this hearing at which Appellant's counsel was
not present (See
footnote 19) not been essentially a pro forma hearing
given the judge's previous announcement of his ruling, we would be more concerned
with the possible ex parte nature of the proceeding. However, because
we are unable to identify any resulting prejudice to Appellant that resulted
through her counsel's failure to appear at the hearing during which the trial
court adopted its final ruling and because Appellant has not fully preserved
this issue by requesting a transcript of the subject proceeding, we have no basis from which to find that any significant
procedural harm resulted that rises to the level of reversible error.
Based on the foregoing, the order of the Circuit
Court of Wood County is hereby affirmed.
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.