PUBLISHED OPINION
Case No.: 95-1072
†Petition for
Review filed.
Complete
Title
of
Case:NINA KENNEDY,
Petitioner-Appellant,
v.
WISCONSIN DEPARTMENT OF HEALTH AND
SOCIAL SERVICES, OFFICE OF ADMINISTRATIVE
HEARINGS, AND BUREAU OF QUALITY CONTROL,
Respondents-Respondents. †
Submitted
on Briefs: November 10, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: January 18, 1996
Opinion
Filed: January
18, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Waupaca
(If
"Special" JUDGE: Philip
M. Kirk
so
indicate)
JUDGES: Eich, C.J., Dykman and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the petitioner-appellant the
cause was submitted on the briefs of John C. Talis of Lawton &
Cates, S.C. of Madison.
Respondent
ATTORNEYSFor the respondents-respondents the
cause was submitted on the brief of James E. Doyle, attorney general,
and Donald P. Johns, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED January
18, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1072
STATE OF WISCONSIN IN
COURT OF APPEALS
NINA
KENNEDY,
Petitioner-Appellant,
v.
WISCONSIN
DEPARTMENT OF HEALTH AND
SOCIAL
SERVICES, OFFICE OF ADMINISTRATIVE
HEARINGS,
AND BUREAU OF QUALITY CONTROL,
Respondents-Respondents.
APPEAL
from an order of the circuit court for Waupaca County: PHILIP M.
KIRK, Judge. Reversed and cause
remanded with directions.
Before
Eich, C.J., Dykman and Vergeront, JJ.
DYKMAN,
J. Nina Kennedy appeals from an order
dismissing her petition for review of the Department of Health and Social
Services's decision reversing a hearing examiner's order, and concluding that
she abused a veterans' home resident, contrary to Wis. Adm. Code § HSS
129.03(1).[1] Kennedy raises three issues on appeal: (1) whether the Department exceeded its
jurisdiction when the director of the Department's Office of Administrative
Hearings reviewed and reversed the hearing examiner's finding of no abuse; (2)
whether Kennedy's due process rights were violated when the director failed to
consult with the examiner on issues of witness credibility; and (3) whether the
director's finding that Kennedy abused the
resident is erroneous as a matter of law. We conclude that the Department exceeded its jurisdiction when
the director reversed the examiner's finding of no abuse.[2] Consequently, we reverse.
BACKGROUND
In March 1993, Nina
Kennedy was employed as a nurse's aide at the Wisconsin Veterans' Home in King,
Wisconsin. On the morning of
March 5, she determined that a resident who was on the laxative list[3]
needed an enema. She mistakenly
believed that a doctor had written an order for an enema. To avoid injury, the veterans' home trains
its staff to administer enemas while the residents are in their beds. Kennedy decided, however, that because this
resident had a decubitus ulcer or bedsore near his anus, that to avoid
infection, she and another nurse's aide would administer the enema in another
way. When later confronted about the
incident, Kennedy lied and said that she had administered the enema while the
resident was in bed.
In
September 1993, the Bureau of Quality Compliance (BQC), part of the Department,
issued a finding that Kennedy had abused the resident. This finding, if not appealed, would have
resulted in her name being entered on the nurse's aid registry as having abused
a nursing home resident, thereby disqualifying her from employment at the
veterans' home. Kennedy requested and
was granted a hearing before a Department hearing examiner.
In
March 1994, the hearing examiner concluded that Kennedy did not abuse the
resident when she administered the enema.
The examiner concluded that, although mistaken, Kennedy "did what
she thought was in the best interest of the resident." The examiner concluded that she was
negligent for not checking to see if the resident had a doctor's order for an
enema, but that her actions were not taken in "willful and wanton disregard"
of the resident's needs and interests.
The examiner stated that Kennedy made "a good faith error in
judgment and ordinary negligence ... caused the problem." The examiner ordered that the BQC's finding
that Kennedy abused a resident not be entered on the registry, and stated that
this was a final decision and that an appeal of the decision could be filed
with a trial court pursuant to § 227.53, Stats.
By
letter dated April 5, 1994, addressed to the director of the Office of
Administrative Hearings, the BQC requested, pursuant to § 227.49(1) and
(5), Stats., a reversal of the
hearing examiner's order or a rehearing.
In her reply to the director, Kennedy argued that neither a rehearing
nor reversal was warranted. The
director granted the BQC's request for a rehearing but did not remand the
matter to the examiner because Kennedy argued that the case involved a legal
error which the director could decide.
The director reviewed the case de novo and reversed the
examiner's order, finding that Kennedy's actions constituted abuse under Wis. Adm. Code § HSS 129.03(1). In so doing, the director concluded that
Kennedy's method of administering the enema, its unauthorized nature, and her
initial lack of candor about the incident demonstrated that she intentionally
and substantially disregarded her duties and obligations to the resident. The director concluded that the conduct in
this case did not amount to a failure to follow a policy or breach of a duty,
but that her actions were unilateral, unauthorized, and potentially seriously
harmful. Therefore, it ordered the BQC
to enter Kennedy's name on the registry and stated that an appeal may be taken
to a trial court pursuant to § 227.53, Stats.
Kennedy
petitioned the trial court for review of the director's order. The court dismissed the petition, concluding
that her conduct satisfied the definition of abuse found in Wis. Adm. Code § HSS 129.03(1). Kennedy appeals.
JURISDICTION
To
determine whether the director had the authority to review the hearing
examiner's order, we must construe § 146.40, Stats., and Wis. Adm.
Code § HSS 129.11. Statutory construction is a question of law
which we review de novo. GTE
North Inc. v. PSC, 176 Wis.2d 559, 564, 500 N.W.2d 284, 286
(1993). We first examine the language
of the statute to determine the legislature's intent and if that language is
clear and unambiguous, we go no further.
State ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225-26,
496 N.W.2d 177, 179 (Ct. App. 1992). We
interpret administrative rules using the same rules of statutory
construction. Basinas v. State,
104 Wis.2d 539, 546, 312 N.W.2d 483, 486 (1981). Furthermore, we owe no deference to the Department's construction
of the statute since it affects the Department's power to proceed. State ex rel. St. Michael's
Evangelical Lutheran Church v. DOA, 137 Wis.2d 326, 335, 404 N.W.2d
114, 118 (Ct. App. 1987).
Before
reaching the merits of this appeal, the Department makes two initial responses
to the jurisdictional issue, both of which we reject. First, the Department argues that because Kennedy did not raise
this jurisdictional issue before the Department, she has waived it. We disagree. The jurisdiction of administrative agencies is always open for
judicial review. Union Indem. Co.
v. Railroad Comm'n, 187 Wis. 528, 538, 205 N.W. 492, 496 (1925). Thus, this issue may be raised at any
time. Wisconsin Employment
Relations Bd. v. Lucas, 3 Wis.2d 464, 472, 89 N.W.2d 300, 305
(1958). Consequently, whether Kennedy
raised this issue before the Department is irrelevant for the purposes of this
appeal. We will review it.
Second,
the Department contends that Kennedy has taken inconsistent positions on the
jurisdiction issue and is now judicially estopped from contesting it before
this court. We recognize that Kennedy
asked the director not to remand the case to the hearing examiner, but instead
to decide the legal issue himself. Now
she claims that the director exceeded his jurisdiction when he did what she
asked him to do.
Judicial
estoppel is an equitable remedy which prevents parties from taking inconsistent
positions in legal proceedings. Coconate
v. Schwanz, 165 Wis.2d 226, 231, 477 N.W.2d 74, 75 (Ct. App. 1991). But this rule applies only where the
challenged actions constitute "cold manipulation and not unthinking or
confused blunder, [and] it has never been applied where [the] ... assertions
were based on fraud, inadvertence, or mistake." State v. Fleming, 181 Wis.2d 546, 558, 510 N.W.2d
837, 841 (Ct. App. 1993) (quoted source omitted). The record does not reflect that Kennedy attempted to manipulate
the judicial process. Furthermore,
parties cannot confer subject matter jurisdiction upon a court by waiver,
consent or estoppel. Wisconsin's
Environmental Decade, Inc. v. PSC, 84 Wis.2d 504, 515-16, 267 N.W.2d
609, 616-17 (1978). If we do not have
jurisdiction, we must so conclude.
Consequently, we reject the Department's argument. We may properly review the jurisdictional
issue.
Turning
to the merits of this appeal, the Department contends that the statutes and
rules permit the director to review the hearing examiner's determination and
enter the order it did. Kennedy argues
that the director lacked jurisdiction to review the examiner's order. According to Kennedy, the director reviewed
the order and did not conduct a rehearing as permitted by § 227.49(1), Stats.
Kennedy asserts that any review of that order should have been directed
to the courts and not to the agency.
A
nurse's aide may be reported to the Department when he or she is suspected of
abusing a patient. Section
146.40(4r)(a), Stats. The Department must then investigate these
allegations and, if substantiated, the Department notifies the nurse's aide
that his or her name will be entered on a registry unless he or she contests
the listing in a hearing before the Department. Section 146.40(4r)(b) and (c).
If the nurse's aide requests a hearing, the Department shall hold a
hearing under the requirements of ch. 227, Stats.,
and, if after the presentation of evidence, the hearing officer finds that
there is no reasonable cause to believe that the nurse's aide abused the
resident, the proceeding is dismissed.
Section 146.40(4r)(d). If the
hearing officer finds there is reasonable cause to believe that the nurse's
aide abused the resident, the nurse's aide's name will be entered on the
registry. Id. The Department maintains a registry
containing a list of persons for whom the department has made a pre-hearing
finding of abuse, see § 146.40(4g)(a)2, Stats., or for whom a hearing officer makes a finding of
abuse after a fact-finding hearing, see § 146.40(4g)(a)3. Thus, the statutes distinguish between the
Department's pre-hearing findings and the examiner's post-hearing findings.
In
addition to these statutes, the administrative code further guides the
Department's procedure. Wis. Adm. Code § HSS 129.11(3)(b), provides:
1. If an aide files a timely appeal,
the department's office of administrative hearings shall hold a hearing in
accordance with s. 227.42, Stats., and issue a written decision as the
department's final order within 120 days after the date the appeal was filed,
except that the hearing examiner may extend the 120-day period if the aide
shows that a substantial reason exists to delay the hearing.
....
3. If the hearing examiner finds
there is no reasonable cause to substantiate the alleged action, the finding
shall not be entered on the registry.
4. If the hearing examiner finds
there is reasonable cause, the department shall enter a summary of the hearing
examiner's decision on the registry within 10 working days after the date on
which the hearing examiner's decision was mailed.
5. The hearing examiner's written
decision shall include:
a. Notice that the aide has the
right to submit a brief rebuttal statement in writing to the department to
dispute the hearing examiner's decision and, that if submitted, it will be
included on the registry; and
b. Notice
that the aide has the right to petition for judicial review pursuant to s.
227.53, Stats.
The
language of these statutes and the administrative rules indicate that the
hearing examiner makes the determination of abuse and that decision is the
final agency decision. The statutes and
rules do not confer upon the Department the authority to review the examiner's
decision. Instead, the language
provides that any review of the examiner's decision shall be made to the
courts. The statutes and rules make no
reference to a second level of administrative review nor do they permit any
person, other than the examiner, to make the determination of abuse. Indeed, the administrative rules and the
examiner's order direct an appeal to the courts and not to another Department
office. Consequently, the Department
exceeded its jurisdiction when the director reviewed the examiner's
determination.
The
Department responds that the statutes and rules do make repeated references to
the hearing examiner or a hearing officer, but that § 146.40(4r)(d), Stats., provides that "the
department shall hold a hearing under the requirements of ch. 227." From this, it argues, additional
administrative review under ch. 227, Stats.,
is not precluded. It agues that the
references to a hearing officer includes all hearing officers having
jurisdiction to act under ch. 227, including the director.
The
problem with this argument is twofold.
One, it ignores the language of the statutes and rules which make
specific references to the hearing examiner and to only one level of agency
decision-making. We agree that the
Department must hold a hearing consistent with ch. 227, Stats., but such a hearing was held, albeit before the
examiner. Two, if we accepted this
argument, the BQC or an aggrieved party could make unlimited requests for
review by another examiner. That result
is ridiculous. The statutes and rules
clearly provide that the legislature intended only one level of agency review.
The
Department also relies upon § 227.49(1), Stats.,
which provides that a person aggrieved by a final agency order may petition for
a rehearing, or that an agency, on its own motion, may order a rehearing. It argues that nothing in the statutes or
the administrative code prohibits the agency from entertaining a rehearing
request, and that § 227.49 is intended to permit an agency to correct
errors. Kennedy agrees that this
statute applies to this matter and that the BQC had the right to seek a rehearing,
but before the hearing examiner who initially decided the matter and not the
director.
We
agree that a director cannot rehear a matter he or she has never heard in the
first place. Only the hearing examiner
who made the initial determination may rehear the case. In other words, the examiner may rehear a
matter in which he or she was initially involved, but the director may not
rehear or review the matter anew.
Finally,
the Department argues that under §§ 227.46 and 47, Stats., the Department may review the hearing examiner's
determination. But these statutes do
not require director review, and the Department has not set up such a procedure
for it. Instead, it has provided that
the examiner's decision is the final agency decision.
By
the Court.—Order reversed and
cause remanded with directions.
[1] Wis.
Adm. Code § HSS 129.03(1),
provides:
"Abuse"
means conduct evincing such willful and wanton disregard of a client's physical
and mental needs and interests as is found in deliberate violations or
disregard of client rights, or in carelessness or negligence of such degree or
frequency as to manifest equal culpability, wrongful intent or evil design, or
to show an intentional and substantial disregard of the aide's duties and
obligations to the client. Mere
inefficiency, unsatisfactory conduct, failure in good performance as the result
of inability or incapacity, inadvertency or ordinary negligence in isolated
instances, or good faith errors in judgment or discretion are not deemed to be
abuse. "Abuse" includes
neglect and mistreatment.