Fyodor And Pelageya Klimovich, App. v. Wa. St. Dshs, Res. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FYODOR KLIMOVICH and NO. 69938-5-1
PELAGEYA KLIMOVICH, — "
DIVISION ONE m
Appellants, -n -r\
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STATE OF WASHINGTON, UNPUBLISHED OPINION -136 Wn.2d 38, 45, 959 P.2d 1091 (1998).
The burden rests on Klimovich to demonstrate the invalidity of the agency's action.
RCW 34.05.570(1 )(a). We will grant relief from the Department review judge's order if
"[t]he order is not supported by evidence that is substantial when viewed in light of the
whole record before the court. .. ." RCW 34.05.570(3)(e). We will also grant relief if
"[t]he order is arbitrary or capricious." RCW 34.05.570(3)(i).
Under the substantial evidence test, we uphold challenged findings when they
are supported by a sufficient quantity of evidence to persuade a fair-minded person of
their truth or correctness. Raven v. Dep't of Soc. & Health Servs., 177Wn.2d 804, 817,
306 P.3d 920 (2013). Unchallenged findings are verities on appeal. Tapper v. Emp't
Sec. Dep't, 122 Wn.2d 397, 407, 858 P.2d 494 (1993). "When reviewing factual issues,
the substantial evidence standard is highly deferential to the agency fact finder."
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Chandler v. Office of Ins. Comm'r, 141 Wn. App. 639, 648, 173 P.3d 275 (2007). The
fact finder's credibility determinations are not subject to review. Thomas v. Dep't of
Emp'tSec. 176 Wn. App. 809, 813, 309 P.3d 761 (2013) ("A reviewing court will not
substitute its judgment for that of the agency regarding witness credibility or the weight
of the evidence."). After reviewing the findings for substantial evidence, we review de
novo whether the challenged conclusions of law flow from the findings. Cantu v. Dep't
of Labor & Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012).
Klimovich assigns error to one finding of fact:
38. [Department witnesses] Karen Heeney, Elena Bruk, and Vincent
Guerra, all testified that it is the case manager's duty to monitor the health,
safety, and well-being of the client and to maintain an accurate Plan of Care to
meet the client's needs. [Ivan and Larisa's] failure to notify the Department of the
Appellants' move to the 206 address deprived the Department of the ability to
monitor the health, safety, and well-being of the Appellants and to ensure that
their care plan was accurate and that their care needs were met.
CABR 10. Our review of the record shows substantial evidence supports this finding.
The review judge found that Department case manager Elena Bruk and
Chesterfield case manager Hanna Hatalskaya provided credible testimony supporting
the Department's allegation that Ivan and Larisa failed to update the Klimoviches'
address during an approximately four-week period in July 2009:
26. Ms. Bruk testified that she first became aware of a possible change in
address when the results from a May 26, 2009, annual assessment, were
returned in the mail on July 14, 2009. Ms. Bruk testified that the returned
documents contained a forwarding address of 206 175th Avenue, Shoreline, WA.
Ms. Bruk testified that she contacted Larisa Kozorezova by telephone on July 14,
2009, and was informed that it was a mailing address only, but that the
Appellants were still living at the 5th Avenue address.
27. Larisa Kozorezova testified at hearing that she provided a letter to Ms.
Bruk notifying her of the move during the May 26, 2009, in-home assessment,
and that Ms. Bruk took the letter with her when she left. Pelageya Klimovich was
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present during this meeting and testified that she observed Larisa present the
letter to Ms. Bruk.
28. In her testimony, Ms. Bruk denied that she was informed, either
verbally or in writing, about the move. Her SER notes do not indicate that she
received notice and she did not change the Appellants' address in the
Department computer system.
29. Ivan and Larisa Kozorezov testified at the hearing that the
Department was faxed a letter regarding the Appellants' move. They also
testified that they had a fax confirmation; however, the fax confirmation was
never submitted as evidence.
30. Ivan Kozorezov testified that he submitted three letters to Chesterfield
regarding this move. He testified that these letters were hand delivered with his
timesheets at the beginning of May, June, and July 2009. Chesterfield
employees Jared Othieno, Yan Deretsky, and Hanna Hatalskaya all testified that
they did not receive the letters and that the letters were not in the Appellants'
Chesterfield files.
31. Hanna Hatalskaya became the Chesterfield case manager in May or
June 2009, after Yan Deretsky was terminated. She testified that the
Kozorezovs notified her of the move during a home visit on August 1, 2009. Ms
Hatalskaya also testified that Department case manager Elena Bruk notified her
of the move on July 29, 2009.
32. Because the testimony of the parties conflicted on material points, the
ALJ was required to make a credibility finding. The ALJ, having carefully
considered and weighed all the evidence, including the demeanor and
motivations of the parties, the reasonableness of the testimony, and the totality of
the circumstances presented, resolved the conflicting testimony in favor of the
Department's testimony. This finding was based on the lack of evidence to
establish that notice was given to either the Department or Chesterfield. The
Appellants were unable to produce any additional evidence proving that any
notice of a change of address was provided to the Department prior to July 29,
2009. Larisa Kozorezova's testimony that she provided at least one notice to
Elena Bruk was not confirmed by the testimony or the contemporaneous SER
notes of Ms. Bruk, or by any fax confirmation or other written proof of notice to
the Department. There is no logical reason why Ms. Bruk would not have
entered new address information into the system if she had received it. Similarly,
the lack of proof of any of the three written notices to Chesterfield brings that
testimony into question. If notice had been provided to Chesterfield in May 2009,
the additional notices should not have been necessary. The current and former
Chesterfield employees who provided testimony at the hearing were unable to
confirm that these notices were ever received. Evidence presented at hearing
established that Chesterfield was undergoing extensive reorganization and
employee turnover during this time period. Despite the upheaval at Chesterfield,
the ALJ and Review Judge both find it unlikely that three letters would be
misplaced.
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33. Based on the foregoing credibility finding, the ALJ and Review Judge
have determined that both the Department and Chesterfield became aware that
the Appellants had moved to the 206 address on July 29, 2009. However, if Ms.
Bruk had not discovered the move, it is unclear how long the Department and
Chesterfield would have been unaware of the Appellants' physical residence.
CABR 7-9. Klimovich does not challenge these findings.
The review judge's unchallenged findings further show that Larisa intentionally
lied when asked by Bruk about the address change:
35. The Department alleges that Larisa Kozorezova lied to Ms. Bruk
about the Appellant's address. On or about July 14, 2009, Ms. Bruk received
returned documents mailed to the Appellants. These documents reflected that
the Appellants' address had changed. Ms. Bruk called Larisa Kozorezova and
asked her about it. Ms. Bruk's testimony and SER notes establish that Ms.
Kozorezova told her that the Appellants' mail was being stolen and that their
mailing address had been changed so that their mail would be received at the
Kozorezov residence. Ms. Bruk's testimony and SER notes establish that Ms.
Kozorezova told her that although the Appellants' mailing address had changed,
their physical address had not. According to Ms. Bruk's testimony and
contemporaneous SER Note, on July 27, 2009, she drove by the Appellants'
apartment and found it empty with a few gallons of paint and a couple of ladders
on the floor. The floor was covered by a plastic sheet and there was no furniture
in the apartment. Ms. Bruk's subsequent SER notes indicate that when she
confronted Larisa Kozorezova about misreporting the Appellants' address, Ms.
Kozorezova apologized for her deception and expressed her "fear of spies, who
are watching them all the time, like in Russia."
36. Larisa Kozorezov denies that she misled the Department about the
address or that she apologized to Ms. Bruk for misleading her.
37. The ALJ and Review Judge, having carefully considered and
weighed all the evidence, including the demeanor and motivations of the parties,
the reasonableness of the testimony, and the totality of the circumstances
presented resolves this conflicting testimony in favor of the Department's
testimony. Although it is unclear why Larisa Kozorezov misrepresented the
address of the Appellants to the Department, it is more likely than not that she
did. To find otherwise would require a finding that Ms. Bruk intentionally
fabricated, in great detail, the facts set forth in her SER notes. There is no logical
reason why she would place her employment at risk in such a manner.
CABR at 9-10.
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The above-quoted findings, together with other unchallenged record evidence,
establish the following timeline of undisputed events:
July 1, 2009 The Klimoviches move from 17503 5th Avenue NE to 206
NE 175th Street (both addresses in Shoreline, Washington).
At the time, Ivan and Larisa work for Chesterfield Home
Care Services, a licensed private home care agency.
July 14, 2009 Department case manager Elena Bruk receives returned
mail sent undelivered to 17503 5th Avenue NE. The
returned mail contains a forwarding address of 206 NE 175th
Street. Bruk phones Larisa to inquire about the address
change. Larisa falsely claims that 206 NE 175th Street is a
"mailing address only" and that the Klimoviches still reside at
17503 5th Avenue NE. CABR 7.
July 29, 2009 The Department confirms that the Klimoviches have moved
to 206 NE 175th Street. When Bruk confronts Larisa about
the discrepancy, Larisa apologizes for her deception and
blames the incident on her "fear of spies, who are watching
them all the time, like in Russia." CABR 10. Bruk updates
the Department's database to reflect the correct address.
Sept. 28, 2009 Ivan and Larisa sign individual provider contracts offered by
the Department.
Nov. 30, 2009 The Department terminates the contracts.
We conclude substantial evidence supports the challenged finding stating that Ivan and
Larisa failed to "notify the Department of the Appellants' move to the 206 address
and that the address change incident "deprived the Department of the ability to monitor
the health, safety, and well-being of the Appellants and to ensure that their care plan
was accurate and that their care needs were met." CABR 10.
Bruk testified that one of her responsibilities was to supervise individual
providers:
Q. Can you please share with us what your duties and responsibilities are
as a case manager?
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A. As a case manager, I am in charge of my caseload. I'm visiting face to
face clients with annual assessment, significant change reassessment, if
necessary and—and also 30 day visits of new clients.
Q. Is it your responsibility as a case manager to provide oversight for the
services provided to our clients?
A. Yes.
Q. Do you, as a case manager, monitor individual provider and agency
home care providers [sic] services provided to our clients?
A. Yes.
Report of Proceedings (RP) (Feb. 7, 2011) at 32-33. She also testified that the address
change incident impaired her ability to monitor the Klimoviches, thereby jeopardizing the
Klimoviches' health, safety, and welfare:
Q. . . . So, how did the provider's inability to notify you of the address
change impact the health, safety or wellbeing of the clients?
A. Urn, the client, urn moved to a new setting, which we [were] not aware
of. And there is, urn, access to emergency services? How the client will act in
case of an emergency? If there [is] any emergency plan evacuation? If client is
getting all the medications in the new setting? And, urn, ifclient's eating the
meals because of the diseases, illnesses he or she has? And, urn, if client is
safe?
Q. So, do you have concerns about the health, safety or wellbeing of a
client if the provider's not being truthful to you about what's going on?
A. Yes. Yes.
RP(Feb. 7, 2011) at 73-75.
Bruk's supervisor, Karen Heeney, testified similarly about the address change
incident. She explained the incident left the Department unable to determine whether
the Klimoviches' needs were being met:
Q. Urn, why were you concerned about the issue in regards to the
address, uh, information not being provided to the Department?
A. Urn, we—we did not know where the clients lived.
Q. And—and why is that concerning?
A. Well, we are required to know and monitor, urn, you know, where the
clients are and—and the purpose of that would be to, you know, be able to
monitor that, urn, their needs are being met and they're getting the services, urn,
that they're authorized for.
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Q. Is there a concern about, uh, the accuracy of the care plan if you don't
know where the clients are residing in their living environment?
A. Moving is a significant change. The care assessment and care
planning are based on, urn, what the client needs in their particular environment.
We develop that plan of care, urn, you know, based on, urn, what their needs are
where they're living. So, if I don't know where they're living and what, urn, the
circumstances are that they're living in, urn, you know, I can't—I can't tell you
whether their needs are being met.
A case manager would want to make sure that, urn, a client has uh, a
functioning toilet or a working refrigerator. Do they have, urn, stairs that they
need to navigate? Are they able to evacuate in case of emergency? Can they
access the bathroom? Those are some of the issues that are identified in that
particular care plan.
RP(Feb. 11, 2011) at 67-68.
Further, the review judge entered unchallenged findings showing that the
Klimoviches suffered from poor health:
2. Prior to his death on February 24, 2011, Mr. Klimovich had complex
medical needs. Pursuant to his last CARE assessment in 2009, he suffered from
congestive heart failure, hypertension, osteoarthritis, neuropathy, angina, cardiac
dysrhythmia, COPD, and non insulin dependent diabetes.
4. Mrs. Klimovich has complex medical needs. Pursuant to her last
CARE assessment in 2009, she suffered from hypertension, osteoarthritis,
coronary artery anomaly, angina, and difficulty with non insulin dependent
diabetes.
CABR 2.
Based on the testimony of Bruk and Heeney and other undisputed record
evidence, we conclude substantial evidence supports challenged finding 38.
We also conclude that the challenged conclusion of law quoted below is
supported by the findings of fact:
8. The evidence presented at the hearing supported the Department's
decision to terminate the Kozorezovs' contracts to provide the Appellants'
individual care services, pursuant to WAC XXX-XX-XXXX. The hearing evidence
clearly established that the Kozorezovs moved the Appellants to a different home
and address, and intentionally failed to notify the Department of the change. Not
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only did these actions violate the requirements outlined in WAC XXX-XX-XXXX,
they clearly supported the Department's reasonable, good faith belief that the
Kozorezovs lacked the requisite judgment to appropriately meet the Klimovichs'
needs, pursuant to WAC XXX-XX-XXXX. Additionally, the Kozorezovs' failure to
truthfully communicate with the Department restricted its ability to provide
oversight of the Appellants' complex medical needs and jeopardized the
Appellants' health, safety, and well-being. Because of the Kozorezovs' inability
to truthfully communicate with the Department regarding the Appellants'
continued physical location, the Department properly denied the Appellants' their
choice of individual providers and correctly terminated the Kozorezovs' individual
provider contracts.
CABR 16 (footnote omitted).
Klimovich also argues the Department "misapplied the law regarding terminable
offenses." Br. of Appellant at 18. "We give substantial weight to an agency's
interpretation of the law within its expertise, such as regulations the agency
administers." Marcum v. Dep't of Soc. & Health Servs., 172 Wn. App. 546, 559-60, 290
P.3d 1045 (2012). Under RCW 74.39A.095(7), the Department may terminate an
individual provider's contract upon the case manager's finding that the provider's
"inadequate performance or inability to deliver quality care is jeopardizing the health,
safety, or well-being of a consumer receiving service under this section. . . ." Former
WAC XXX-XX-XXXX (2009) provides a nonexclusive list of examples of circumstances
indicating jeopardy to the client:
(1) Domestic violence or abuse, neglect, abandonment, or exploitation of a
minor or vulnerable adult;
(2) Using or being under the influence of alcohol or illegal drugs during
working hours;
(3) Other behavior directed toward the client or other persons involved in
the client's life that places the client at risk of harm;
(4) A report from the client's health care provider that the client's health is
negatively affected by inadequate care;
(5) A complaint from the client or client's representative that the client is
not receiving adequate care;
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(6) The absence of essential interventions identified in the service plan,
such as medications or medical supplies; and/or
(7) Failure to respond appropriately to emergencies.
Former WAC XXX-XX-XXXX (2009).
Klimovich argues that WAC XXX-XX-XXXX describes conduct that clearly places
the client at serious risk of probable harm. Noting that there is no evidence that she or
her late husband endured stress or neglect at the hands of Ivan and Larisa, Klimovich
contends that the address change incident does not rise to the level of the examples
offered in this regulation. We disagree. The exemplar grounds for termination listed in
former WAC XXX-XX-XXXX (2009) are expressly "without limitation." They are illustrative
factors that the Department may consider in exercising its discretion to terminate an
individual provider contract where "inadequate performance or inability to deliver quality
care is jeopardizing the health, safety, or well-being of a consumer receiving service
under this section " RCW 74.39A.095(7). There is no language in RCW
74.39A.095(7) or WAC XXX-XX-XXXX requiring the Department to prove that the
Klimoviches suffered actual harm.
The Department asserts that the contracts were properly terminated under these
standards because it can no longer trust Ivan and Larisa to promote Klimovich's health,
safety, and well-being. As the ALJ stated in the corrected initial order:
[t[his act breached the trust that must exist between the Department and care
providers, and it reasonably caused the Department to question all other
information provided to it by the Kozorezovs. ... If the Department is unable to
reliably monitor the care received by its clients, there is no way to ensure
adequate care, or to diagnose and prevent abuse or other harm. This places the
health, safety and well-being of the Appellants at risk.
AR at 89.
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In upholding the terminations, the review judge noted that the hearing evidence
clearly established that both Ivan and Larisa intentionally failed to notify the Department
of the Klimoviches' address change, in violation of WAC XXX-XX-XXXX. It concluded that
"the Kozorezovs' failure to truthfully communicate with the Department restricted its
ability to provide oversight of the Appellants' complex medical needs and jeopardized
the Appellants' health, safety, and well-being." AR at 16. The Department properly
applied the law, and the challenged conclusion is supported by the findings.
The review judge further ruled that the incident "clearly supported the
Department's reasonable, good faith belief that the Kozorezovs lacked the requisite
judgment to appropriately meet the Klimovichs' needs, pursuant to WAC XXX-XX-XXXX."
CABR 16. Former WAC XXX-XX-XXXX (2009) provided, "The department.. . may reject
a client's request to have a family member or other person serve as his or her individual
provider if the case manager has a reasonable, good faith belief that the person will be
unable to appropriately meet the client's needs." Klimovich does not challenge the
review judge's reliance on former WAC XXX-XX-XXXX (2009) as a basis for termination.
Klimovich next argues the review judge's order was arbitrary and capricious
because Bruk was hostile to Ivan, Larisa, and the Klimoviches. This claim fails for two
reasons. First, Klimovich fails to cite the record to support this allegation, as required by
RAP 10.3(a)(6). Second, even assuming Bruk disliked Ivan, Larisa, and the
Klimoviches, that alone fails to demonstrate that the review judge's order was arbitrary
and capricious. "To find an agency's decision to be arbitrary and capricious we must
conclude that the decision is the result of wilful and unreasoning disregard of the facts
and circumstances." Providence Hosp. of Everett v. Dep't of Soc. & Health Servs., 112
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Wn.2d 353, 356, 770 P.2d 1040 (1989). "[0]ne who seeks to demonstrate that action is
arbitrary and capricious must carry a heavy burden." Pierce County Sheriff v. Civil Serv.
Comm'n of Pierce County, 98 Wn.2d 690, 695, 658 P.2d 648 (1983). The review
judge's findings demonstrate that the Department terminated the contracts after due
consideration of the material circumstances, including Ivan's failure to update the
Klimoviches' address and Larisa's lie about the address.4 Klimovich continues to argue
that the misconduct did not justify termination, but "neither the existence of contradictory
evidence nor the possibility of deriving conflicting conclusions from the evidence
renders an agency decision arbitrary and capricious." Rios v. Wash. Dep't of Labor &
Indus.. 145 Wn.2d 483, 504, 39 P.3d 961 (2002).
Klimovich further contends the order was arbitrary and capricious because the
record shows the Department delayed the terminations until several months after the
misconduct occurred. She claims no logical explanation justified the delay. We
conclude evidence of the delay did not render the review judge's order arbitrary or
capricious. First, we note that the address change incident was one of several
misconduct claims involving Ivan and Larisa. The complexity of the case explains at
least part of the delay. Second, our record indicates that in mid to late 2009, the
Department had a higher than average workload as it attempted to negotiate individual
provider contracts with care givers who, like Ivan and Larisa, were previously employed
by home care agencies. Heeney testified itwas "a very hectic time at [the City of
Seattle Aging Disability Services Division] with the addition of, you know, 1,400 new
4 As noted above, the review judge rejected Ivan's testimony that he hand
delivered three letters about the move to Chesterfield. The review judge also rejected
Ivan and Larisa's testimony that they faxed a letter about the move to the Department.
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providers . . . ." RP (Feb. 11, 2011) at 68. Additionally, the review judge entered an
unchallenged finding of fact describing the lengthy recontracting process:
15. The transition from agency provider ("AP") to individual provider ("IP")
required a re-contracting process. HCAs [Home care agencies] provided a list of
names of clients being provided in-home care by family members. Department
case managers then asked clients if they wanted to maintain their family member
as their in-home care provider. If the clients and the providers agreed to have
the providers become IPs, the Department's administrative staff reviewed the
providers paperwork from the HCAs to ensure that the provider's training was up
to date and that there was no disqualifying criminal history. If the HCA
paperwork for the provider did not reveal training or criminal history issues, the
provider was invited to an orientation by the Department. At the orientation, the
provider reviewed and signed the IP contract. Once the IP contract was signed,
Department administrative staff notified the Department case manager assigned
to the client. The case manager would then notify the client. If the provider did
not have a criminal history, the Department did not interview the provider, consult
the case manager or conduct a Character, Competency and Suitability review.
CABR 4. On this record, it appears the delay was largely administrative. Klimovich fails
to demonstrate that the review judge's order resulted from willful and unreasoning
disregard of the facts and circumstances. Providence Hosp.. 112 Wn.2d at 356.
Klimovich next argues that by terminating Ivan and Larisa's individual provider
contracts, the Department violated her due process rights. She contends that Bruk's
contempt for the Klimoviches and their care givers, in addition to the Department's delay
in taking action to cancel the contracts, demonstrates that the Department's stated
concern for the Klimoviches' health, safety and well-being was arbitrary and pretextual.
"To constitute a protected interest requiring due process protection, a government
action must 'constitute the impairment of some individual's life, liberty, or property.'"
Weyerhaeuser v. Pierce County. 124 Wn.2d 26, 54, 873 P.2d 498 (1994) (quoting
Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance
and Procedure § 17.2 (2d ed. 1992)). Citing Board of Regents v. Roth. 408 U.S. 564,
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577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), Klimovich asserts that she and her late
husband were third party beneficiaries of Ivan and Larisa's individual provider contracts.
Roth held that an untenured professor hired at a state university for a one-year term
was not entitled to additional process after the university, without providing a hearing or
an explanation, declined to rehire him for the following academic year. Roth provides
no support for Klimovich's due process argument. And Klimovich provides no further
analysis of the issue. "Parties raising constitutional issues must present considered
arguments to this court." State v. Johnson. 119Wn.2d 167, 171, 829 P.2d 1082 (1992).
Klimovich's argument on this issue falls well below the level needed to warrant further
consideration.
Klimovich next argues that the judge was "arbitrary and capricious in the test he
used for discerning the truth," since he gave Bruk the "benefit of the doubt."5 Br. of
Appellant at 29. She contends the judge "made an arbitrary credibility determination,
finding that Ms. Bruk was not notified of Mr. and Mrs. Klimovich's move in a timely
fashion." Br. of Appellant at 29. We disagree. Faced with conflicting testimony, the
judge was required to credit certain facts and to reject others. Nothing in our record
suggests the Department benefitted from any undue favoritism. Moreover, the judge's
credibility determinations are not subject to review. Thomas, 176 Wn. App. at 813.
Klimovich also alleges the review judge should have considered the decision to
terminate Ivan's contract separately from Larisa's contract. Our review of the record
5 In making this argument, Klimovich purports to challenge findings of fact 32
and 37. But she assigned no error to those findings. Under RAP 10.3(g), "A separate
assignment of error for each finding of fact a party contends was improperly made must
be included with reference to the finding by number." As discussed above, Klimovich
properly challenged only finding of fact 38.
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shows the judge properly distinguished between evidence of Ivan's misconduct and that
of Larisa. Although his findings focus on Larisa's dishonesty, they make clear that Ivan
and Larisa independently committed misconduct justifying termination. Both Ivan and
Larisa had a responsibility to notify the Department immediately when the Klimoviches
moved. The review judge found that both Ivan and Larisa "intentionally" failed to notify
the Department of the Klimoviches' change of address. AR 16. The judge also found
that Larisa provided false information to the Department regarding the Klimoviches'
address but that Ivan did not misrepresent the address. The review judge did not
"paint[ ] Ivan [and Larisa] with the same brush" as Klimovich alleges. Br. of Appellant at
28. The record shows that the judge considered the evidence against each of them
separately in reaching his decision.
CONCLUSION
The findings are supported by substantial evidence, and the conclusions of law
flow from the findings. The Department's decisions were not arbitrary and capricious.
We therefore affirm the final decision and order terminating the individual provider
contracts.
WE CONCUR:
Vj) aaYAL^, x^
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