NEW JERSEY DEPARTMENT OF HEALTH VS. CATHERINE BAWAK-OROCK (NEW JERSEY DEPARTMENT OF HEALTH) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5649-18
NEW JERSEY DEPARTMENT
OF HEALTH,
Petitioner-Respondent,
v.
CATHERINE BAWAK-OROCK,
Respondent-Appellant.
_____________________________
Submitted January 6, 2021 – Decided March 1, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the New Jersey Department of Health,
Docket No. 17-11373.
Law Offices of Jef Henninger, attorney for appellant
(Jef Henninger, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Francis X. Baker, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Catherine Bawak-Orock appeals from a July 29, 2019, final
agency decision by the New Jersey Department of Health (DOH) finding abuse
of a nursing home resident, placing her name on the New Jersey Nurse Aide
Registry (Registry), and revoking her nursing aide certification. We affirm.
Appellant worked as a certified nurse aide (CNA) at the Kennedy Health
Care Center1 (facility) working the night shifts. During her twenty years as a
CNA she was never previously disciplined and was described as reliable,
patient, and playful with her residents.
This appeal arises from an incident that occurred October 25, 2017,
when appellant was assisting one of her assigned residents, D.S., an eighty-
seven-year-old woman suffering from dementia, hypertension, and
sundowning, a condition that causes her to be very confused at night.
Appellant was called by another CNA to report to the common bathroom to
assist D.S., who had soiled herself. D.S. was uncooperative and yelling while
appellant cleaned and changed her. A licensed practical nurse (LPN) who was
employed at the facility heard yelling and went to assist. By the time the LPN
got there, appellant was almost finished tending to D.S. The LPN assisted by
restraining D.S.'s arms while appellant finished cleaning her. The LPN helped
1
The facility is now called Jefferson Health Care Center.
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D.S. into her wheelchair while appellant discarded D.S.'s soiled sheets and
clothes. Appellant was behind D.S., and the LPN was in front. While the LPN
pulled the wheelchair out of the bathroom, appellant hit the back of D.S.'s
head, causing it to thrust forward. The LPN directly observed appellant push
D.S.'s head and told appellant to stop.
The LPN reported appellant's action to the Nursing Supervisor on duty.
The supervisor questioned appellant about the incident, and appellant admitted
that she "jokingly" hit D.S.'s head. Appellant demonstrated her action on the
supervisor two times by standing in front of her and pushing her head. The
supervisor then asked appellant to clock out and leave the facility immediately.
The supervisor reported the incident and prepared a written statement about
the events that same evening.
The security officer on duty was contacted by the supervisor to report to
the unit where the incident occurred. He observed appellant's actions toward
the supervisor. As the security officer was escorting appellant out of the
facility, appellant demonstrated her action on the security officer, stating tha t
what she did was not abuse and that D.S. was fighting with her. The security
officer prepared a written statement at the end of his shift.
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The matter was reported to the Director of Nursing at the facility. As
director, she was responsible for investigating allegations of abuse and neglect.
As part of the investigation, she was required to collect statements from
everyone who may have encountered a resident who was allegedly abused or
neglected. The director collected statements from the witnesses, but she did
not collect one from D.S. because of the resident's condition. She also
reviewed surveillance footage from the night of the incident.
The director knew appellant and had worked with her for six years; she
knew appellant had a good rapport with the residents and appellant had never
been the subject of an allegation of abuse. The director also knew D.S., and
knew she was combative with staff and residents. However, the director
explained that staff may use force only to prevent a resident from injuring
themselves, and she concluded that the way appellant hit D.S. was
inappropriate. The director substantiated appellant for abuse.
On December 5, 2017, DOH issued an order of summary suspension of
appellant's nursing aide certification. Appellant requested a fair hearing. The
matter was transferred to the Office of Administrative Law. On March 26,
2018, DOH notified appellant it intended to enter a finding of abuse, neglect,
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and mistreatment of a nursing home resident next to appellant's name on the
registry, and it revoked her nursing aide certification.
Hearings were conducted on December 19, 2018, and January 23, 2019.
The record was closed on May 9, 2019. 2 On June 12, 2019, the Administrative
Law Judge (ALJ) issued an initial decision that found abuse, neglect, and
mistreatment, and the ALJ revoked appellant's nurse aide certification. On
July 29, 2019, DOH issued a final agency decision adopting the findings of
fact and conclusions of law contained in the initial decision. This appeal
followed.
On appeal, appellant argues DOH's findings were not supported by
substantial evidence; therefore, her conduct did not constitute abuse pursuant
to Survey and Certification of Long-Term Care Facilities, Definitions, 42
C.F.R. § 488.301 (2017). Appellant argues that she did not inflict injury and
that although her actions can be considered inappropriate, they do not
constitute abuse. Appellant claims that D.S. said she was okay and wanted to
wheel herself out of the bathroom and did not receive any treatment. Lastly,
appellant contends she had a good rapport with her residents, was described as
2
The initial decision misdates the record closing year as 2018 when it should
be 2019, according to the chronology of the record.
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a good worker by her colleagues, and her absence of prior allegations or
reprimands should be given greater deference.
Our review of an administrative decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011). We will not upset the ultimate determination of an
agency unless shown that it was (1) arbitrary, capricious, or unreasonable; or
(2) that it violated legislative policies expressed or implied in the act
governing the agency; or (3) that the findings on which the decision is based
are not supported by evidence. Brady v. Bd. of Review, 152 N.J. 197, 210-11
(1997). We afford substantial deference to an agency's "action provided it i s
consistent with the legislative grant of power." Lewis v. Catastrophic Illness
Fund, 336 N.J. Super. 361, 369-70 (App. Div. 2001). Therefore, when an
administrative agency interprets and applies a statute, it is entitled to great
weight. Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443, 448 (App. Div.
2001) (quoting Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999)).
The party challenging the decision bears the burden of establishing
whether the agency's findings were supported by substantial evidence. Barone
v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986). The
court must decide "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record considering 'the
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proofs as a whole.'" In re Taylor, 158 N.J. at 656 (quoting Close v. Kordulak
Bros., 44 N.J. 589, 599 (1965)). Further, we defer to the factfinder, who had
the ability to observe the demeanor, tone, and physical actions of all the
witnesses and appellant during the hearings. State v. Locurto, 157 N.J. 463,
474 (1999).
Here, the agency based its finding of abuse upon sufficient, credible
evidence. The ALJ found the testimony of the LPN, the supervisor and the
security guard all to be credible. The ALJ found the director's testimony to be
credible, as she demonstrated a thorough understanding of the investigation
and conducted herself professionally. The ALJ reviewed the surveillance
footage from the facility produced by DOH. The footage is two minutes long
and has the date stamp of the night the incident occurred.
Appellant conceded she struck D.S. on the back of her head, but said it
was a joke. Prior to this incident, appellant never received any disciplinary
action and had good rapport with her residents. Despite appellant's testimony,
the ALJ found her not credible because appellant produced a written statement,
which she prepared two days after the incident, that was inconsistent with her
testimony. The written statement contradicts her testimony by indicating she
may have held up her hands to protect herself from D.S., who was being
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physically combative. Thus, based on our review of the record and our
deference to the credibility findings of the ALJ, we agree there is sufficient
evidence in the record to support the ALJ's findings.
Appellant also argues her actions do not constitute abuse pursuant to 42
C.F.R. § 488.301. We disagree.
Abuse is defined as "the willful infliction of injury, unreasonable
confinement, intimidation, or punishment with resulting harm, pain, or mental
anguish." 42 C.F.R. § 488.301; N.J.S.A. 52:27G-2(a). This includes "verbal
abuse, sexual abuse, physical abuse, and mental abuse including abuse
facilitated or enabled through the use of technology." 42 C.F.R. § 488.301.
Additionally, abuse includes "the deprivation by an individual, including a
caretaker, of goods or services that are necessary to attain or maintain
physical, mental, and psychosocial well-being." Ibid. The definition of abuse
applies to "[i]nstances of abuse of all residents, irrespective of any mental or
physical condition, [that] cause physical harm, pain, or mental anguish." Ibid.
Further, "willful" is defined as an individual acting "deliberately, not that the
individual must have intended to inflict injury or harm." Ibid.
Concerning nursing home residents, the legislature established as public
policy that "residents and clients of health care facilities serving their
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specialized needs and problems" are to be afforded "the same civil and human
rights guaranteed to all citizens." N.J.S.A. 52:27G-1. A resident of a long-
term care facility "has the right to be free from abuse, neglect,
misappropriation of resident property, and exploitation." Freedom from
Abuse, Neglect, and Exploitation, 42 C.F.R. § 483.12 (2016); N.J.A.C. 8:39-
4.1(a)(5). They are entitled to be "treated with courtesy, consideration, and
respect for the resident's dignity and individuality." N.J.A.C. 8:39-4.1(a)(12).
Nurse aides in licensed long-term care facilities must hold certifications
demonstrating successful completion of the required training course, good
moral character, and completion of a criminal background check. N.J.A.C.
8:39-43.2(a). Federal requirements for nursing facilities require each state to
establish and maintain a registry of nurse aides. 42 U.S.C. § 1396r(e)(2)(A);
Registry of Nurse Aids, 42 C.F.R. § 483.156(a) (2021); N.J.A.C. 8:39-43.7.
The registry shall include specific findings by the state of resident abuse,
resident neglect, or misappropriation of resident property by a nurse aide. 42
U.S.C. § 1396r(e)(2)(B); 42 C.F.R. § 483.156(c)(iv). When there is a finding
of abuse, neglect, or misappropriation, the available remedies are revocation or
suspension of a holder's certification. N.J.A.C. 8:39-43.5.
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To determine whether abuse has been established, the burden of proof
falls on the agency in enforcement proceedings to prove a violation or
allegation. Cumberland Farms, Inc. v. Moffett, 218 N.J. Super. 331, 341 (App.
Div. 1987). The agency in this matter, DOH, bears the burden by a
preponderance of the evidence. Atkinson v. Parsekian, 37 N.J. 143, 149
(1962). Evidence is preponderant "if it establishes 'the reasonable probability
of the fact.'" Jaeger v. Elizabethtown Consol. Gas Co., 124 N.J.L. 420, 423
(Sup. Ct. 1940) (citation omitted). The evidence must "lead a reasonably
cautious mind to the given conclusion." Bornstein v. Metro. Bottling Co., 26
N.J. 263, 275 (1958).
Striking a nursing home resident, even one who is combative, constitutes
abuse. Here, as outlined in 42 C.F.R. § 488.301, injury does not need to be
inflicted to constitute abuse. Appellant argues that her actions do not
constitute abuse because she hit D.S. in a joking matter. This argument is
unpersuasive.
Although appellant has a good reputation, the evidence presented
supports a finding of abuse. We also recognize the penalty imposed is severe.
However, the conduct herein goes against public policy enacted in N.J.A.C.
8:39-4.1(a)(12), which states long-term care residents are to be treated with
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"courtesy, consideration, and respect." They rely on the staff for their
everyday needs. Abuse or neglect inflicted upon them is intolerable.
Appellant's conduct goes against public policy of protecting this vulnerable
population.
Affirmed.
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