Opinion
No. CV 09 4019654S
December 3, 2009
MEMORANDUM OF DECISION
The plaintiff, Dannielle Holly, appeals from a final decision of the Department of Developmental Dervices (DDS) issued on October 14, 2008 and approved by the DDS commissioner Peter O'Meara on November 14, 2008. The final decision placed the plaintiff on the DDS abuse and neglect registry, General Statutes § 17a-247b.
The plaintiff is aggrieved for the purposes of § 4-183(a) by this placement.
After a hearing held on September 3, 2008, the hearing officer made the following findings of fact.
The Plaintiff is referred to as the "respondent" in the findings of fact.
1. At all times mentioned herein and relevant thereto, Dannielle Holly ("Respondent") was employed by the Kennedy Center as a Residential Counselor. Respondent began her employment on April 7, 2004.
2. Kennedy Center is a facility that is licensed and regulated by the Department.
4. At all times mentioned herein and relevant thereto, Client S was a consumer of the Kennedy Center who was placed in Probus House, which is a group home operated by the Kennedy Center.
6. Respondent received comprehensive training provided by the Kennedy Center. This included orientation, health and safety training, abuse and neglect, habilitation, culture diversity, the agency's policies and procedures, CPR, First Aid, Crisis Prevention Institute ("CPI"), and defensive driving by the National Safety Council. Respondent also received training that is specific to the house in which Respondent was intended to work, including Client S.
7. At all times mentioned herein and relevant thereto, Client S had a behavior plan to address acting out and maladaptive behavior. This included "refusals" whereby Client S was non-responsive and/or resistive to staff requests. Respondent was provided with a copy of this behavior plan.
8. On February 19, 2005, Respondent yelled at Client S and "was in [his] face so he would listen to her." Respondent directed Client S to get up from the chair where he was sitting in order that another consumer be able to occupy that space. Client S was nonresponsive and resistive to Respondent's direction. Respondent then dragged Client S by his wrists off the chair, to the floor and across the floor causing an injury to his knee.
9. On February 20, 2005, staff at Probus discovered Client S's injury.
10. On February 21, 2005, Respondent was placed on administrative leave pending the outcome of an investigation.
11. On February 22, 2005, the Kennedy Center submitted a referral to the Office of Protection and Advocacy for investigation of abuse by Respondent and assigned an investigator to commence an investigation.
12. On March 8, 2005, Respondent was terminated or separated from employment. The termination or separation was as a result of the substantiated verbal and physical abuse of Client S.
13. On March 9, 2005, the Kennedy Center completed its investigation and issued an Investigation Report. The investigation was prompt, comprehensive, and thorough. The Investigation Report is relevant and reliable.
14. On May 23, 2005, the Office of Protection and Advocacy substantiated abuse by Respondent against Client S.
15. On September 29, 2005, the Kennedy Center through its Vice President of Human Resources, filed the Notice of Termination Or Separation For Abuse or Neglect with the Department.
16. On June 12, 2008, the Department substantiated the allegation of abuse and notified Respondent that a hearing would be held on July 23, 2008 [continued to September 3, 2008], in order to determine if her name should be placed on the Abuse and Neglect Registry. (Return of Record [ROR], pp. 6-7.)
The hearing officer concluded that the DDS had met its burden of proof and that the abuse was substantiated. She also found that although the employer and DDS did not meet time deadlines set forth in regulation §§ 17a-247e-5(a) and 17a-247e-8(a), the matter was not subject to dismissal. The regulations did not contain a sanction for missed deadlines, the hearing was fair, the plaintiff produced no evidence that Client S was incompetent to testify, the plaintiff called no witnesses, and she did not testify, choosing to rely on statements given to DDS investigators. (ROR, pp. 8-12.)
"Not later than five business days following receipt of written notification by an authorized agency of the substantiation of abuse or neglect by an employee who has been terminated or separated from employment for such abuse or neglect, an employer shall submit to the department the name of such employee and such other information as the department may request."
"(a) Within forty-five (45) days following notification by an employer, during which the department will verify necessary information, including the substantiation of abuse or neglect, the department shall notify the employee by certified mail that his name has been submitted by his former employer for placement on the registry following a termination or separation from employment for substantiated abuse or neglect and that a hearing will be convened to determine whether the employee's name should be placed on the registry."
This appeal followed. The plaintiff claims the lack of evidence to substantiate abuse and a lack of due process in violating time deadlines.
The court follows recent appellate cases in resolving the issues. See Hogan v. Dept. of Children and Families, 290 Conn. 545, 561, 964 A.2d 1213 (2009) (upholding the hearing officer's findings and conclusions): "Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citation omitted.)
Under the DDS registry statute § 17a-247b and regulation § 17a-247e-8, an employee of a facility licensed by the DDS is first investigated by the office of protection and advocacy to see whether the allegation of abuse should be sustained. See § 46a-11c. If the abuse is sustained, then under § 17a-247b(e), the DDS is to hold a hearing. DDS may not place the employee on the registry until after the hearing and a decision is made that such placement is warranted. Regulation § 17a-247e-8(d)(5) allows the hearing officer to consider whether the finding of substantiation was supported by a preponderance of the evidence. Thus, the procedure of placing the employee on the registry list satisfies the issue raised in Lovan C. v. Dept of Children Families, 86 Conn.App. 290, 860 A.2d 1283 (2004) (hearing officer must consider not only placement on registry list, but also whether substantiation was correctly determined).
In addition, Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833, 955 A.2d 15 (2008), provides: "Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.)
This court has applied this standard in Vines v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 08 4016779 (November 24, 2008, Cohn, J.) [ 46 Conn. L. Rptr. 703] (hearing officer entitled to discount the plaintiff's version of the incident). Judge Hartmere has noted that "[t]he fact that there is contrary evidence in the record and that the plaintiffs disagree with the weight accorded to the evidence, does not affect the validity of the DCF decision." Dailey v. Dept. of Children and Families, Superior Court, judicial district of New Britain, Docket No. CV 98 0492670 (January 11, 2000, Hartmere, J.)
The record shows substantial evidence. A witness informed the investigator that she was told by Client S. that he had been pushed out of a chair by the plaintiff. Further, the plaintiff was aware of Client S.'s treatment plan, namely that he would over-react to being directed in a harsh manner. The treatment plan set up alternatives in the event that Client S. needed redirection. The hearing officer could find that the plaintiff did not meet Client S.'s treatment plan. (ROR, 146-47, 153, 164-68, 206-07.) This evidence, while strictly hearsay, had sufficient reliability so that the hearing officer might rely upon it. See § 4-178; Tomlin v. Personnel Appeal Board, 177 Conn. 344, 386 A.2d 261 (1979).
Regarding the missed deadlines in the DDS regulations, the plaintiff has failed to show prejudice. As the Appellate Court stated in Papic v. Burke, 113 Conn.App. 198, 223, 965 A.2d 633 (2009): "We reiterate that not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Internal quotation marks omitted.) See also Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 97, 596 A.2d 374.
The court also agrees with the hearing officer that the deadlines set forth in the DDS regulations are not jurisdictional or mandatory, but discretionary. See Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 270, 777 A.2d 645 (2001); Turley v. Wilson-Coker, Superior Court, judicial district of New Britain, Docket No. CV 030520265 (June 7, 2005, Owens, J.) (decision not issued within 90 days).
As the hearing officer concluded, the plaintiff did not call any witnesses and relied on the evidence introduced by DDS. During the time elapsed between the employer's decision to terminate and the DDS proceeding, the plaintiff was fully employed. Finally, there is an established procedure by which the plaintiff may remove herself from the Regulation § 17a-247e-9 registry list.
Therefore, the appeal is dismissed.