Pal v. State, Department of Social and Health Services

7 Wn.App.2d 1065

MAGDALENE PAL, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 50660-2-II

Court of Appeals of Washington, Division 2

March 5, 2019

UNPUBLISHED OPINION

Sutton, J.

Magdalene Pal appeals the Department of Social and Health Services^[1] Board of Appeals' finding that she neglected a vulnerable adult. Pal argues that the Department erroneously interpreted and applied the statutory definition of neglect and failed to support its finding of neglect with substantial evidence.

We hold that, although the Department did not erroneously interpret and apply the statutory definition of neglect, the finding of neglect was not supported by substantial evidence. Consequently, we reverse the Department's finding of neglect against Pal. We also hold that the Department's actions were substantially justified, and we therefore deny Pal's request for attorney fees and costs under the Equal Access to Justice Act (EAJA), RCW 4.84.350.

FACTS

I. Substantive Facts

A. Background

Timothy^[2] became a Developmental Disabilities Administration (DDA) client in June 2000 when he was 17 years old based on his diagnosis of mental retardation. Timothy experiences paranoia and his ability to care for himself independently is limited. As a result of Timothy's limitations, he qualified for 69 hours of paid personal care services per month through DDA. Timothy completed high school but struggles with reading. In the past, Timothy has lived on his own as well as in residential treatment facilities. Timothy has no known history of self-harm, suicidal ideation, or overdosing on medication.

Timothy has a history of forgetting to take his medications. When Timothy lived on his own, he had an agency care provider who checked in with him and ensured he was taking his medications. In January 2011, Timothy lived at a residential treatment facility and was preparing to move into a mother-in-law suite at Magdalene Pal's home. While living at the residential treatment center, Timothy's medications were kept in a lockbox in the medication room. During "med pass" times, Timothy would go to the medication room and receive his medicine from the facility's staff. Agency Record (AR) at 10; 243.

Pal was a DSHS-authorized caregiver from 2009 until December 2011. Pal lives with her husband, two children, and her mother Raj Pal, who is also a DSHS-authorized caregiver. Pal became Timothy's caregiver in January 2011. When Timothy arrived at Pal's home, the residential treatment facility dropped him off with a garbage bag containing all of his belongings. Bubble packs of all Timothy's medications were unorganized in the garbage bag. Timothy and Pal worked together to organize his medications into a pill organizer. Timothy was able to identify his medications by their different shapes, sizes, and colors. The following day, Pal called the pharmacy to confirm Timothy's medications and proper dosages.

Pal continued to provide Timothy services until the Department issued a finding of neglect against her in December 2011. Following the finding of neglect against Pal, Timothy continued living at Pal's home, and Raj^[3] took over as Timothy's caregiver.

B. Incident

In early August 2011, Pal told Timothy that in two weeks she would be going out of town for the weekend to visit her in-laws. Pal explained to Timothy that while she was gone Raj would be giving him his meals and medications, and that Timothy could reach Pal by phone any time. Because Raj lived in the home, Raj and Timothy were familiar with each other; Timothy called her "sweet grandma." AR at 22. Pal told Timothy that she'd call to check in regularly. Pal notified Timothy's DDA case manager Ricki Bournival, about the arrangement and Bournival approved it.

Before leaving for her trip, Pal organized Timothy's medications for that evening and the following two days into a pill organizer which designated doses for "a.m." and "p.m." each day. II Report of Proceedings (RP) at 42. The organizer contained five doses of Timothy's medications. The day of Pal's trip, as she was packing up to leave, Timothy came into the house, saw the pill organizer on the counter, and took it. Raj informed Pal that Timothy had taken the pill organizer, and Pal tried to convince him to return it. Timothy refused to return the pill organizer. Timothy argued with Pal, saying he wanted to keep the medications himself and pointing out that he had been in charge of his own medications when he lived on his own in the past. Timothy argued that he was not a child and took the organizer to his room.

Because Timothy would not return the pill organizer, Pal and Raj adjusted their plan and decided to have Raj check on Timothy and tell him when it was time for him to take his medication. Pal explained to Timothy how the pill organizer worked and showed him that the top of the organizer was his morning dose and the bottom was his evening dose. Timothy indicated that he understood.

Pal then left for her trip. When Raj brought Timothy dinner that evening she assumed he had taken his evening dose because the pill organizer for that day was empty, but the remaining doses were still in the pill organizer. Half an hour later, Timothy told Pal's neighbor that he had taken all of his medication for the weekend. The neighbor then called Pal, who called Raj. Raj went to Timothy's room and asked where the pill organizer was, but he would not tell her. She ultimately found the empty organizer under the couch. Timothy told Raj that he had taken all of the medication so he would not have to take them the following day. Raj called 9-1-1, and Timothy was ultimately transported to the hospital.

At the hospital, Timothy was admitted for observation and psychological evaluation for "altered mental status with possible overdose." AR at 12. Hospital records showed that Timothy had taken excessive amounts of carbamazepine. During a psychological consultation at the hospital Timothy told the provider, "I took too many pills and almost killed myself [be]cause I was agitated and upset." AR at 12. The provider also noted that Timothy acknowledged regret for his actions and did not seem to have an appreciation of the severity of his ingestion. The hospital also ordered a psychiatric consult which found that Timothy had no suicidal ideation at the time he was released. A registered nurse noted that Timothy "accidentally took both a.m. and p.m. meds." The hospital found that Timothy's actions were "an impulsive ingestion." AR at 13.

Timothy was released from the hospital four days after his admission. Upon his release, Timothy returned to his regular living arrangement at Pal's home. Pal continued as Timothy's caregiver for the next four months.

II. Procedural Facts

A. Neglect Finding

On August 22, 2011, the Department's Adult Protective Services division (APS) received a report that Pal had neglected Timothy. Max Horn, an investigative social worker for APS, initiated his investigation that day. As part of his investigation, Horn interviewed Timothy, Pal, and reviewed collateral documentation. Horn did not interview Raj, Pal's neighbor, or any of the medical providers who treated Timothy during his hospital admission.

On December 20, 2011, the Department mailed Pal a letter notifying her that the Department had made a finding that she had neglected a vulnerable adult by leaving "a vulnerable adult to administer his medications while [she] went out of town for a few days, knowing the vulnerable adult had a history of inaccurate medication administration and that the vulnerable adult was unable to read or write." AR at 2, 224. Pal requested a hearing but was denied for timeliness. Pal v. Dep't of Soc. & Health Servs., 185 Wn.App. 775, 780, 342 P.3d 1190 (2015). After the superior court affirmed her denial, she appealed to this court, and we reversed. Pal, 185 Wn.App. at 789. The matter was remanded for a hearing before the Office of Administrative Hearings.

B. Administrative Law Judge Hearing

Pal and the Department appeared for a hearing before an administrative law judge (ALJ) on January 8, 2016. At the hearing, Horn testified that in the course of his investigation he interviewed Timothy, Pal, Timothy's mother, and DDA case manager Ricki Bournival.

Bournival also testified at the hearing. Bournival testified that Timothy had been one of her clients for about nine years. Bournival explained the details of a care assessment (ISP) she completed for Timothy in January 2011. Bournival testified that the care assessment plan listed "client limitations" and "client strengths" which were populated from drop down lists. I RP 2 at 00-01. Bournival also testified that she would select anything from a drop down list that could potentially apply to a client. Bournival explained that the care assessment was primarily to generate the number of hours a DDA client needs as opposed to giving specific instructions to a caregiver. When asked where a caregiver would turn to find out specifically what she needs to do for a client, Bournival explained:

Most of the time that is dependent on the client's living situation. . . . [I]n the situation like where Tim was living at [Pal]'s home, it was more of a verbal arrangement and verbal instructions on "This is what Tim benefits from. This is -these are Tim's strengths. These are his weakness [sic]. This is what he's done in the past. This is what, you know, would be good in the future."

I RP at 211-12.

At the time the ISP was completed, Timothy was living at a residential treatment facility but had plans to move to Pal's home where he would rent a mother-in-law suite. Bournival noted that the care assessment identified that Timothy needed "partial physical assistance" with a host of health...