Blake Huegel, V. D.s.h.s., State Of Wa ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
November 21, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BLAKE HUEGEL, No. 59660-1-II
Appellant,
v.
STATE OF WASHINGTON DEPARTMENT UNPUBLISHED OPINION
OF SOCIAL AND HEALTH SERVICES,
Respondent.
GLASGOW, J.—WS, a vulnerable adult, lived in an adult family home, Vintage Years. WS’s
bed at Vintage Years was placed against a wall on one side and he had an upper bed rail installed
on his bed on the other side. At WS’s family’s request, Blake Huegel, a temporary caregiver at
Vintage Years, then installed a lower bed rail on WS’s bed.
An upper bed rail starts at the head of the bed, runs along the side of the bed, and is about
three feet long. A lower bed rail is the same length and starts at the foot of the bed. When both an
upper and a lower bed rail are installed, there is an approximately one-and-a-half-foot gap between
them. The lower bed rail that Huegel installed was not medically approved and left WS only a
narrow gap between bed rails to exit his bed. Within a day of Huegel installing the lower bed rail,
WS fell while getting out of bed and died several days later from a subdural hematoma.
The Department of Social and Health Services (the Department) investigated Huegel and
found that he abused a vulnerable adult by improperly using a mechanical restraint, the lower bed
rail. During the investigation, Huegel admitted that he installed the lower bed rail on WS’s bed
No. 59660-1-II
without medical authorization and that he knew this violated regulations. After a hearing, an
administrative law judge affirmed the abuse finding against Huegel. The Department’s Board of
Appeals (the Board) affirmed the administrative law judge’s finding. The superior court affirmed
the Board’s order. Huegel appeals.
We conclude that the Board’s unchallenged findings are verities on appeal. The Board
appropriately considered hearsay evidence in this administrative proceeding, where hearsay is
permitted if it is the type of evidence on which a reasonably prudent person would rely. And the
three findings that Huegel challenges are supported by substantial evidence in the record, including
Huegel’s admissions during the investigation. The Board correctly applied the plain language of
the abuse of a vulnerable adult standard because it includes the improper restraint of a vulnerable
adult without medical authorization. The Board did not have to find that Huegel intended to injure
WS. Finally, we recognize that the abuse finding has significant consequences, especially where
WS’s injuries were the result of an unfortunate accident. But under current law, placement on the
registry of those who have abused vulnerable adults did not violate Huegel’s procedural due
process rights.
We affirm. We deny Huegel’s request for appellate attorney fees.
FACTS
I. BACKGROUND FACTS
The following facts are drawn primarily from the unchallenged findings of fact in the
Board’s final order, which are verities on appeal. Postema v. Pollution Control Hr’gs Bd., 142
Wn.2d 68, 100, 11 P.3d 726 (2000).
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Blake Huegel was a licensed certified nursing assistant working in adult long-term care.
He had nine years of experience in long-term care and ran multiple adult family homes. Huegel
occasionally assisted his brother, Cameron Huegel, at Vintage Years, an adult family home that
Cameron operated in Battle Ground, Washington. At Vintage Years, Huegel acted as a “fill-in
caregiver” when Cameron was unavailable. Verbatim Rep. of Proc. (VRP) at 213. Huegel
completed a training in 2016 that explicitly included “[w]hat constitutes a restraint.” Admin. Rec.
(AR) at 3. Under Washington law, a restraint includes “any device attached or adjacent to the
vulnerable adult’s body that [they] cannot easily remove that restricts freedom of movement or
normal access to [their] body.” Former RCW 74.34.020(15) (2019).
A. WS’s Admission to Vintage Years and Initial Assessments
WS, a 90-year-old man, began living at Vintage Years in November 2019 after falling at
home and suffering severe injuries. Before WS entered the home, Vintage Years filled out a long-
term care assessment for him. The care assessment noted that WS was “disoriented” and
“attempted to get out of bed.” AR at 6, 264. It recommended that caregivers should keep WS’s
bed low to the floor, remind WS to use a call signal when getting out of bed, and use a bed alarm.
Vintage Years also completed a care plan for WS. The care plan did not mention bed rails, but it
stated that WS was at risk for falls and that Vintage Years would keep his bed low to the ground.
In December 2019, WS attempted to get out of bed by himself and fell. He was taken to
the hospital and treated for an injured hip before returning to Vintage Years in January 2020.
B. After WS’s December 2019 Fall
In December, after WS’s fall, a nurse at Vintage Years completed a bed rail assessment for
WS. A “bed rail,” also called a “side rail,” is an assistive device that can be placed on beds to help
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residents reposition and maneuver in and out of bed. An upper bed rail starts at the head of the
bed, runs along the side of the bed, and is about three feet long. A lower bed rail is the same length
and starts at the foot of the bed. When both an upper and a lower bed rail are installed, there is an
approximately one-and-a-half-foot gap between them. Many adult care facility residents use upper
bed rails for mobility purposes; residents can use the upper rail to brace or steady themselves when
turning over in bed, sitting up, or getting out of bed. When he lived at home, WS had upper bed
rails on his bed.
The nurse, Cameron Huegel, and Polly Little, WS’s daughter, all signed WS’s bed rail
assessment. The bed rail assessment noted that Little requested rails for WS for his “safety and
mobility.” AR at 10. The bed rail assessment included a section on the risks of bed rails, stating
that “serious injuries can occur from falls if an individual climbs over the bed rails,” and that bed
rails “can induce agitation if the rail is perceived as a restraint.” AR at 11. Little consented to these
risks and indicated that she wanted to have upper bed rails placed on both sides of WS’s bed.
Ultimately, the bed rail assessment concluded that no bed rails should be used “[d]ue to
positioning.” AR at 12. This assessment contained no further explanation. This was the only bed
rail assessment that Vintage Years conducted for WS.
During WS’s follow-up visit from the December fall, his primary care provider, Dr.
Gregory Hallas, noted that WS’s behavior had changed significantly, including increased agitation.
In Dr. Hallas’ report, which he faxed to Vintage Years, he ordered “bed rails”—without
distinguishing between upper and lower bed rails—as recommended medical equipment for WS
“to improve bed mobility.” AR at 10.
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At some point after the bed rail assessment and follow-up visit, Little and Stephen Slack,
WS’s son, brought the upper bed rails that were previously installed on WS’s bed at home to
Vintage Years. Huegel installed the upper bed rails on WS’s bed at Vintage Years.
After the bed rail assessment, Vintage Years also completed another long-term care
assessment for WS in January 2020 because of his changed condition after the fall. The long-term
care assessment noted that WS’s dementia had worsened and that he had not walked since the fall.
It listed bed rails as a possible form of special equipment, but did not mention bed rails in WS’s
assessment or care plan.
When he returned to Vintage Years from the hospital, WS became more agitated and
disruptive. He would often call out or attempt to get out of bed, requiring intervention from staff.
At some point in early February 2020, Little brought lower bed rails that she had purchased to
Vintage Years.
Slack, WS’s son, asked Dr. Hallas for recommendations that could help with WS’s
behavior, and Dr. Hallas referred WS to a geriatric psychology specialist and increased his evening
dose of medication. On February 10, Vintage Years faxed Dr. Hallas’s clinic a note stating that
WS’s behaviors had worsened, and he was upsetting other residents and attempting to hit staff.
The note requested “a bed rail order faxed to us as soon as possible, please.” AR at 216. A nurse
at the clinic wrote in WS’s medical record that she called Deanna Williams, WS’s primary
caretaker, on February 12 and told her that Vintage Years could not install additional bed rails
without a doctor’s order. The nurse told Williams, “having full sets of bedrails on bed can
potentially cause increase risk of injury as [WS] can fall over bed/siderails to ground, increasing
height distance to ground compared with 1 rail on each side of bed.” Id.5
No. 59660-1-II
The nurse then forwarded a note to Dr. Hallas, asking, “If OK with bed rails, please clarify:
2 rails on each side (4 in total/bed) OR 1 rail on each side (2 total/bed)?” Id. This sparked an
internal conversation at the clinic about WS’s treatment, and on February 12, Dr. Hallas wrote,
“Bed rails are restricted to a certain coverage—I do not know what that is and cannot advise
anything other than that.” AR at 217. About an hour later, another nurse wrote Dr. Hallas, “OK to
order 2 upper bed rails for safety” and attached a federal website outlining the definition of
“restraint.” Id. Based on WS’s medical records, the clinic had no further communication with
Vintage Years on February 12.
C. WS’s February 2020 Fall
In the meantime, on or around February 12, someone installed the lower bed rail Little
brought for WS’s bed, though there is a factual dispute as to who installed it. It is undisputed that
on the night of February 12, WS had upper and lower bed rails on one side of his bed, and the
other side of the bed was pushed against a wall.
In the evening of February 12, Williams found WS on the ground. Williams called 911 and
first responders took WS to the hospital. Nobody witnessed WS fall. At the hospital, WS had a
brain scan and was diagnosed with only cervical strain and minor injuries to his hip and toenail.
He returned to Vintage Years later that night.
There were conflicting accounts about how WS got out of bed and onto the ground. During
Williams’ 911 call, she said WS “was in his hospital bed, and he has double rails, and somehow
he fell over the rails onto the floor . . . he worked himself out of bed over the rails.” AR at 180.
But WS’s medical team expressed doubt that WS had the strength to lift himself over the bed rails.
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And later Williams stated that WS must have crawled out of the one-and-a-half-foot gap between
the rails because he was too weak to pull himself over the bed rails.
Three days after his fall, WS began having seizures as a result of a subdural hematoma. He
eventually died in hospice a few days later.
II. PROCEDURAL HISTORY
A. Investigations
After WS’s death, the Department received a report of potential abuse involving Huegel
and WS, and it assigned Adult Protective Services Social Worker Taylor Bonnett to investigate
the case. As part of the investigation, Bonnett visited Vintage Years and interviewed Huegel,
Little, Slack, Williams, Dr. Hallas, and other caregivers. Bonnett also reviewed WS’s care plans,
bed rail assessments, medical records, and the 911 call Williams made after WS fell.
Residential Care Services also started an investigation into WS’s care at Vintage Years,
led by Shawn Swanstrom.
1. Investigation findings
During the Residential Care Services investigation, Huegel told Swanstrom that he “placed
the lower set of half side rails on [WS’s] bed . . . at family request.” AR at 331. According to
Bonnett’s investigation notes, when she asked “who physically put the bed rail on,” Huegel replied,
“‘I did.’” AR at 163. Huegel said that when Little brought the lower bed rail to Vintage Years, he
told Little that she needed “proper documentation” before installing it. Id. Huegel told Bonnett that
Little assured him she would work on getting proper documentation for the lower bed rail, but he
“should have looked past [Little] for the actual document.” AR at 166. When Bonnett asked Huegel
directly if he had a doctor’s order for the bed rail before installing it, he said, “‘[N]o I didn’t have
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No. 59660-1-II
it in hand, I should have asked for it. I took [Little’s] verbal word for it, but I know that’s not what
you need to do.’” Id. Little also initially told Bonnett that Huegel installed the lower bed rail.
In her interviews with Swanstrom and Bonnett, Williams, WS’s primary caretaker, claimed
that Huegel installed the lower bed rail on WS’s bed even after she told him and Little that Vintage
Years did not have a doctor’s order for it.
The investigation also revealed that on February 14, two days after WS’s fall, Alexandra
Hacherl, a nurse at Dr. Hallas’s clinic, wrote that she spoke to Williams about WS’s sleeping
arrangements. Hacherl informed Williams that
upper and lower bed rails on one side with the other side of bed being against the
wall is considered a restraint – this would be the same as bed rails x 4 (2 on each
side) which is also a restraint. Facility staff should not be using any bed rails at this
time since [Dr. Hallas] has not provided order for this.
AR at 218. Hacherl noted that when asked, Williams said Huegel installed the lower bed rail.
According to Hacherl’s report, Williams claimed that she told Huegel he needed medical
authorization for the lower bed rail, but he ignored her.
Bonnett interviewed Slack, WS’s son, but Slack did not say that he installed the lower bed
rail. He stated only that WS “had a prescription for the bed rails and the facility would not utilize
them without the doctor’s orders.” AR at 170. He also stated that WS’s family was “happy with
the service” that Vintage Years provided to WS. Id.Dr. Hallas told Bonnett that he did not authorize lower bed rails. After WS’s fall, Dr.
Hallas’s office said that they would not have approved a lower bed rail for WS because WS often
attempted to get out of bed, and a lower bed rail would have posed a safety concern.
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2. Investigation outcomes
Ultimately, based on Swanstrom’s investigation findings, Residential Care Services found
that Vintage Years violated several adult family home regulations, including failure to try less
restrictive alternatives before using the lower bed rail and failure to complete a bed rail assessment
for the lower bed rail.
In February 2021, Adult Protective Services made an initial finding of abuse of a vulnerable
adult against Huegel. The finding stated that Huegel improperly restrained WS by placing a lower
bed rail on his bed. Abuse of a vulnerable adult is a “willful action or inaction that inflicts injury,
unreasonable confinement, intimidation, or punishment on a vulnerable adult.” Former RCW
74.34.020(2). Unreasonable confinement includes “improper use of restraint against a vulnerable
adult,” which is the “inappropriate use of chemical, physical, or mechanical restraints for
convenience or discipline or in a manner that . . . is not medically authorized.” Former RCW
74.34.020(2)(e)(ii). A “mechanical restraint” is “any device attached or adjacent to the vulnerable
adult’s body that [they] cannot easily remove that restricts freedom of movement or normal access
to [their] body.” Former RCW 74.34.020(15).
Adult Protective Services notified Huegel of the initial abuse finding by letter. Huegel
requested a hearing before an administrative law judge to review the initial finding.
B. Administrative Hearing and Board Review
1. Hearing testimony
Huegel represented himself at the hearing. During the hearing, witnesses generally testified
consistently with the facts described above but there were some factual disputes.
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Huegel testified that he did not install the lower bed rail and did not see it installed on WS’s
bed until after the fall. He attributed his previous admissions to confusion about whether the
investigators were asking about upper or lower bed rails: “The uppers, I installed when they came
with the bed, because I was just helping the family set the bed up. And then the lowers, the family
brought, and I’m not aware of who installed those.” VRP at 81. However, Bonnett and Swanstrom
both testified that they believed Huegel was referring to the lower bed rail during their interviews
with him.
Little testified at the hearing that she thought her brother, Slack, installed the lower bed
rail. She admitted that she did not see who actually installed the lower bed rail, but “it was like
[Slack] to just hook it up while he was there.” VRP at 204. Cameron Huegel testified that Slack
said he would be “more than willing” to put on the lower bed rail if Vintage Years could not, but
Cameron also did not see who installed the lower bed rail on WS’s bed. VRP at 213. Slack did not
testify at the hearing because he had since passed away.
Despite multiple attempts to contact her, Williams did not testify at the hearing.
2. Orders and appeals
After the hearing concluded, the administrative law judge issued an initial order affirming
Adult Protective Services’ initial finding that Huegel improperly restrained a vulnerable adult.
Huegel appealed the initial order to the Board.
The Board affirmed the initial order and issued a final order finding that Huegel improperly
restrained a vulnerable adult. The Board made several key findings that Huegel challenges on
appeal.
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First, the Board found that “it is more likely than not that [Huegel] installed the lower bed
rail” on WS’s bed. AR at 33 (Finding of Fact (FF) 137). It relied on Huegel’s and Williams’
statements to investigators, as well as testimony from the investigators during the hearing. The
Board determined that Huegel’s, Little’s, and Cameron’s testimony about who installed the lower
bed rail was not credible because it was either speculative or contradicted earlier interview
statements. It also found that Williams, though she did not testify, was credible because her
statements about Huegel installing the lower bed rail were consistent.
Second, the Board found that the lower bed rail was not “medically authorized.” AR at 36
(FF 138). It cited WS’s medical and care records, hearing testimony, and the investigators’
interviews with Huegel, Dr. Hallas’ office, and Williams. Though Little indicated that she had
contact with Dr. Hallas and brought a bed rail order to Vintage Years, the Board determined that
her testimony was not credible because she expressed confusion about which rails were medically
approved. Little’s belief that the lower bed rail was authorized was also contradicted by other
evidence. Medical records from Dr. Hallas’s office show that on the day of WS’s fall, Vintage
Years asked whether a lower bed rail was approved, which the Board concluded “supports a
finding [WS’s] caretaker did not believe there was medical authorization for the lower bed rail.”
AR at 37 (FF 138). Additionally, Huegel himself claimed that after he installed the bed rails, he
told Little that they still needed medical authorization and Little said she was working on it. Huegel
told Bonnett that he did not have authorization when he installed the bed rails, and he
acknowledged that he should have had a bed rail order. And Williams claimed that when Little
brought the lower bed rail to Vintage Years, Williams advised both Little and Huegel that they
needed medical authorization to install the bed rail.
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Finally, the Board applied the preponderance of the evidence standard to Huegel’s actions,
stating that it “need not decide what actually happened” and only must “determine what most likely
happened” regarding the abuse finding against Huegel. AR at 37 (FF 139). Based on the plain
language of the statute outlining abuse of a vulnerable adult through improper use of restraint,
former RCW 74.34.020(2), the Board concluded that to make an abuse finding against Huegel,
“[i]t only needs to be proven by a preponderance of the evidence that the installation of the lower
bed rails was not medically authorized and [Huegel] knew this.” AR at 48 (Conclusion of Law
19). Applying this standard to its findings of fact, the Board concluded that Huegel had improperly
restrained WS. Thus, it affirmed the administrative law judge’s initial order.
Huegel petitioned for judicial review and the superior court affirmed the Board’s decision.
Huegel appeals.
ANALYSIS
I. ADMISSION OF WILLIAMS’ STATEMENTS
A. Hearsay
Huegel argues that the Board’s challenged findings are erroneous because they improperly
rely on hearsay evidence. Specifically, he claims that the Board improperly relied on Williams’
hearsay statements documented in Bonnett’s investigative notes and Hacherl’s medical notes. He
also claims that the Board erred by relying on Williams’ hearsay statements because Huegel could
not confront her as a witness during the hearing. We disagree.
“Hearsay” is “a statement made outside of the hearing used to prove the truth of what is in
the statement.” WAC XXX-XX-XXXX(3). Under the Washington Administrative Procedure Act, ch.
34.05 RCW, hearsay evidence is admissible in an administrative hearing if “it is the kind of
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evidence on which reasonably prudent persons are accustomed to rely in the conduct of their
affairs.” RCW 34.05.452(1). This kind of hearsay evidence is admissible “even if it would be
inadmissible in a civil trial.” RCW 34.05.461(4). However, a finding cannot rely exclusively on
normally inadmissible hearsay evidence unless the Board determines that it “would not unduly
abridge the parties’ opportunities to confront witnesses and rebut evidence.” Id.Specifically for Department hearings, an administrative law judge can consider hearsay
evidence but can “only base a finding on hearsay evidence if the [administrative law judge] finds
that the parties had the opportunity to question or contradict it.” WAC XXX-XX-XXXX(3). However,
there is no constitutional confrontation right in civil administrative cases. See U.S. CONST. amend
VI; WASH. CONST. art. I, § 22; RCW 10.52.060.
In McDaniel v. Department of Social & Health Services, Division Three held that the
Department improperly relied only on written hearsay evidence in investigative reports. 51 Wn.
App. 893, 897, 756 P.2d 143 (1988). The court stated that in Department hearings, “some
testimonial evidence should be presented corroborating the investigative reports in order to avoid
reliance solely on hearsay and conjecture.” Id.Here, the Board did not improperly rely on hearsay evidence about Williams’ statements,
as the investigators’ contemporaneous reports and their consistent testimony about what Williams
told them are “the kind of evidence on which reasonably prudent persons are accustomed to rely.”
RCW 34.05.452(1). Moreover, the Board relied on several different pieces of evidence in addition
to Williams’ statements, including Huegel’s own admissions and the investigators’ testimony.
Huegel also had the opportunity to question or contradict Williams’ hearsay statements.
During the hearing, Huegel had the opportunity to question Bonnett and Swanstrom about
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Williams’ statements and to testify himself. This allowed him to contradict the content of
Williams’ statements.
Unlike in criminal cases, there is no constitutional confrontation right in civil
administrative hearings like the one in this case. And even though Williams made statements
outside of the hearing, they are the type of statements that a reasonable person would rely on
because they were consistent as she spoke to multiple people before and during the investigative
process.
The Board did not err by relying on Williams’ hearsay statements.
B. Huegel’s Other Arguments for Excluding Williams’ Statements
In addition to the general argument that Williams’ statements were inadmissible hearsay,
Huegel makes several other arguments attempting to show they should have been excluded.
First, Huegel claims that the Board should have excluded Williams’ statements because
they were unreliable under the factors outlined in State v. Parris to determine the trustworthiness
of out-of-court statements. 98 Wn.2d 140, 146, 654 P.2d 77 (1982). But Parris addressed the
admissibility of hearsay evidence in a criminal case, not an administrative hearing. Id. at 142.
Huegel cites a case where Division One applied the Parris factors to determine the admissibility
of child hearsay regarding sexual abuse in an administrative proceeding. Fettig v. Dep’t of Soc. &
Health Servs., 49 Wn. App. 466, 475, 744 P.2d 349 (1987). But Division One only used the Parris
factors as a “reference point” because “no specific rules” governed the admissibility of that specific
kind of evidence in administrative proceedings. Id. at 473. The opinion also acknowledged
Washington’s permissive statutory standard for hearsay evidence in administrative proceedings.
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Id. No case law supports the claim that the Parris factors must be applied to determine the
admissibility of all hearsay evidence in administrative hearings.
Finally, Huegel argues that the Board should not have relied on Williams’ hearsay
statements because they were not the “best evidence reasonably obtainable” when she could have
testified at the hearing. Appellant’s Opening Br. at 26-27. Huegel cites Nisqually Delta Association
v. City of DuPont, which held that hearsay evidence is admissible only if it is “‘the best evidence
reasonably obtainable.”’ 103 Wn.2d 720, 733, 696 P.2d 1222 (1985) (quoting former WAC 461-
08-180, repealed by Wash. St. Reg. 96-15-002 (effective Aug. 3, 1996)). But Nisqually was
decided before RCW 34.05.452(1) was enacted in 1988, and it interpreted a regulation about
admissibility of evidence for a different administrative agency’s proceedings. Id. at 733-34. The
current standard for Department admissibility of hearsay evidence controls.
Huegel’s additional arguments for excluding Williams’ statements all fail.
II. SUBSTANTIAL EVIDENCE
The Board’s order included three findings that Huegel challenges on appeal: (1) Huegel
installed the lower bed rail, AR at 33 (FF 137); (2) the lower bed rail was not medically authorized,
AR at 36 (FF 138); and (3) the Board only needed to “determine what most likely happened” to
affirm the abuse finding against Huegel, AR at 37 (FF 139).
Huegel argues that findings of fact 137, 138, and 139 are not supported by substantial
evidence. We disagree.
A. Standard of Review
When reviewing administrative appeals, this court examines the agency’s final decision,
not the decision from the trial court. Morawek v. City of Bonney Lake, 184 Wn. App. 487, 491,
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337 P.3d 1097 (2014). Under the Administrative Procedures Act, this court will overturn a final
agency decision if it relies on factual findings “not supported by evidence that is substantial when
viewed in light of the whole record.” RCW 34.05.570(3)(e). Substantial evidence supports a
challenged factual finding if “the record contains evidence sufficient to convince a rational, fair-
minded person that the finding is true.” Pac. Coast Shredding, LLC v. Port of Vancouver, USA, 14
Wn. App. 2d 484, 501, 471 P.3d 934 (2020). When determining if substantial evidence supports a
factual finding, we do not “reweigh evidence or judge witness credibility but, instead, defer to the
agency’s broad discretion in weighing the evidence.” Whidbey Env’t Action Network v. Growth
Mgmt. Hr’gs Bd., 14 Wn. App. 2d 514, 526, 471 P.3d 960 (2020). Unchallenged findings of fact
from the Board’s final order are verities on appeal. Postema, 142 Wn.2d at 100.
The standard of proof for a Department abuse of a vulnerable adult finding is a
preponderance of the evidence. Kraft v. Dep’t of Soc. & Health Servs., 145 Wn. App. 708, 716,
187 P.3d 798 (2008). A preponderance of the evidence supports an abuse finding if “it is more
likely than not” that the alleged conduct occurred. WAC XXX-XX-XXXX.
B. Findings of Fact in the Board’s Final Order
1. Finding of fact 137
Huegel first challenges the Board’s finding that he installed the lower bed rail.
The Board acknowledged that there was conflicting evidence in the record about whether Huegel
installed the lower bed rail. However, Huegel told both Bonnett and Swanstrom that he installed
the lower bed rail. The investigators also both testified during the hearing that Huegel made these
statements and they understood him to be talking about installing the lower bed rail.
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Williams did not testify at the hearing, but in her interviews with Swanstrom and Bonnett,
Williams claimed that Huegel installed the lower bed rail on WS’s bed even after she told him that
Vintage Years did not have a doctor’s order for it. And Hacherl, a nurse at Dr. Hallas’s clinic who
also did not testify at the hearing, noted in her incident report that Williams said Huegel installed
the lower bed rail despite her warning.
Though there is disputed testimony in the record about whether Huegel installed the lower
bed rail, this court does not reweigh evidence or determine witness credibility. Whidbey Env’t
Action Network, 14 Wn. App. 2d at 526. The evidence that the Board relied on—including
Huegel’s statements to Bonnett and Swanstrom and Williams’ statements—is sufficient to
persuade a fair-minded person that Huegel installed the lower bed rail on WS’s bed. Accordingly,
we hold that there was substantial evidence to support this finding.
2. Finding of fact 138
Next, Huegel argues that substantial evidence does not support the Board’s finding that the
lower bed rail was not medically authorized. We disagree.
Neither WS’s bed rail assessment nor any of his care plans authorized any bed rails. The
Board acknowledged that one medical note from Dr. Hallas authorized bed rails, but the note does
not specify whether it references upper or lower bed rails. Dr. Hallas “repeatedly declined to make
any recommendations” when asked directly about lower bed rails. AR at 36. In fact, Dr. Hallas
and his staff expressly stated that they did not, and would not, approve lower bed rails. Huegel
also admitted to the investigators that he never saw a doctor’s order authorizing the lower bed rail,
and that he should not have put the lower bed rail on WS’s bed without confirmation that it was
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authorized. This evidence is sufficient to persuade a fair-minded person that a lower bed rail was
not authorized.
3. Finding of fact 139
Concluding its findings of fact, the Board wrote that it “need not decide what actually
happened” and only must “determine what most likely happened” regarding the Department’s
findings. AR at 37. We recognize that this not a finding of fact, but rather a statement about the
burden of proof, which is a legal determination. Huegel argues that the Board misstated the
standard of proof for an abuse finding. We disagree.
The standard of proof for an administrative abuse of a vulnerable adult finding is a
preponderance of the evidence, which means “it is more likely than not that something happened.”
WAC XXX-XX-XXXX. In the Board’s explanation of its findings, it would have been better to recite
the “more likely than not” standard precisely, rather than saying it needed only to determine what
“most likely happened.” AR at 37. But here, there were only two versions of events: either Huegel
installed the lower bed rails with authorization or he did not. Thus, the Board’s reference to what
“most likely happened” does not depart from the “more probable than not” standard as it might if
more than two versions of events were presented. In this case, the Board’s reiteration of the
standard was not error, though we encourage the recitation of the precise “more likely than not”
standard in future cases.
III. INTERPRETATION AND APPLICATION OF THE ABUSE OF VULNERABLE ADULTS STATUTE
Huegel argues that the Board misinterpreted the abuse standard from the “Abuse of
Vulnerable Adults Act,” ch. 74.34 RCW. He claims that he did not “willfully” restrain WS because
he did not intend to cause WS injury, and in fact, he was attempting to protect WS. Based on its
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interpretation of former RCW 74.34.020(2), the Board concluded that the Department need not
show that Huegel intended to injure WS. Instead, the Board stated that the Department had to prove
“by a preponderance of the evidence that the installation of the lower bed rails was not medically
authorized and [Huegel] knew this, to support the conclusion that [Huegel’s] actions constituted
an improper use of restraints.” AR at 48. We agree with the Board’s interpretation.
A. Definition of Abuse
1. Legal principles
“When reviewing an administrative agency decision, we review issues of law de novo.”
Karanjah v. Dep’t of Soc. & Health Servs., 199 Wn. App. 903, 914, 401 P.3d 381 (2017). However,
we give “‘substantial weight to the agency’s interpretation of the law it administers, particularly
where the issue falls within the agency’s expertise.’” Id. (quoting Goldsmith v. Dep’t of Soc. &
Health Servs., 169 Wn. App. 573, 584, 280 P.3d 1173 (2012)).
Under former RCW 74.34.020(2), “abuse” is a “willful action or inaction that inflicts
injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult.”
Unreasonable confinement includes “improper use of restraint against a vulnerable adult,” which
is the “inappropriate use of chemical, physical, or mechanical restraints for convenience or
discipline or in a manner that . . . is not medically authorized.” Former RCW 74.34.020(2)(e)(ii).
A “mechanical restraint” is “any device attached or adjacent to the vulnerable adult's body that
[they] cannot easily remove that restricts freedom of movement or normal access to [their] body.”
Former RCW 74.34.020(15).
The statute does not define “willful” action. In Crosswhite v. Department of Social &
Health Services, the Supreme Court held that an abuser of a vulnerable adult acts “willfully” only
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if they “knowingly inflict injury, unreasonable confinement, intimidation, or punishment.” 197
Wn. App. 539, 551, 389 P.3d 731 (2017). In other words, an abuser must “‘act[] knowingly with
respect to the material elements of the offense.’” Id. at 553 (emphasis omitted) (quoting RCW
9A.08.010(4)). For example, “[y]elling at a vulnerable adult that is nonaccidental and that
nonaccidentally inflicts a type of harm identified by [former] RCW 74.34.020(2) is willful. Yelling
that is nonaccidental but that causes a statutory harm accidentally or without purpose is not.” Id.
In Brown v. Department of Social & Health Services, Brown, a caretaker at an assisted
living facility, physically restrained a resident who had attempted to assault other patients and staff
in the facility by grabbing the resident and holding her down. 145 Wn. App. 177, 180-81, 185 P.3d
1210 (2008). Division Three held that Brown’s actions did not constitute abuse because Brown
did not intend to cause the resident injury, but rather to protect other people from potential danger
posed by the resident. Id. at 183. Thus, Brown’s actions “were warranted and not abusive.” Id. The
court determined that “[b]oth the definition of ‘abuse’ and ‘physical abuse’ require a willful action
to inflict injury. Further, ‘abuse’ may entail ‘unreasonable’ confinement.” Id.
This court applied Brown’s reasoning in Karanjah. 199 Wn. App. at 921. Karanjah, a
caregiver for adults, saw a resident with fecal matter on his hands attempt to hit another caregiver.
Id. at 908. Karanjah also knew that this resident often entered the rooms of other residents and
wanted to avoid spreading fecal matter to other residents’ rooms. Id. at 908, 911. Karanjah took
the resident’s wrists and escorted him down the hallway, and the resident allegedly injured himself
while flailing in Karanjah’s grip. Id. at 908. The court held that Karanjah did not intend to injure
the resident, but that the resident’s injuries resulted from an accident. Id. at 923. Because
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Karanjah’s actions were “clearly protective and not knowingly injurious or ill intended,” Karanjah
did not abuse the resident. Id. at 924.
2. Analysis
Abuse in this context is “willful action or inaction that inflicts injury, unreasonable
confinement, intimidation, or punishment on a vulnerable adult.” Former RCW 74.34.020(2)
(emphasis added). Based on the use of the disjunctive “or” in the statute, abuse includes either
willful action that inflicts injury or willful action that inflicts unreasonable confinement. See
Tesoro Ref. & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 319, 190 P.3d 28 (2008) (“As a
default rule, the word ‘or’ does not mean ‘and’ unless legislative intent clearly indicates to the
contrary.”). Thus, applying Crosswhite’s definition of “willful,” an individual commits abuse if
they knowingly inflict unreasonable confinement on a vulnerable adult. The “knowingly” applies
to all material elements of the offense: the individual doing the act must know that the action is
confinement and that it is unreasonable. Under the plain language of former RCW
74.34.020(2)(e)(ii), Huegel did not have to intend to cause injury for a finding of abuse; he only
needed to intend to cause unreasonable confinement through use of restraint that he knew was not
medically authorized.
Huegel completed a training on “[w]hat constitutes a restraint.” AR at 3. Participation in
the training was circumstantial evidence that Huegel knew what actions might produce an
unreasonable confinement. Huegel also admitted that he knew he needed medical authorization
before installing bed rails, and he failed to actually receive that authorization before installing the
lower bed rail. This evidence demonstrates that Huegel, more likely than not, knew WS’s
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confinement was unreasonable under the terms of the statute because he knew that mechanical
restraints must be—and in this case were not—medically authorized.
Huegel relies on Brown to support his claim that the finding of abuse must be supported
by evidence that he intended to cause injury. He quotes Brown’s holding that “‘[b]oth the definition
of ‘abuse’ and ‘physical abuse’ require a willful action to inflict injury.’” Appellant’s Opening Br.
at 41 (quoting Brown, 145 Wn. App. at 183). However, Huegel omits the next sentence from
Brown, which states, “[f]urther, ‘abuse’ may entail ‘unreasonable’ confinement.” Brown, 145 Wn.
App. at 183. In both the statute and in Brown, unreasonable confinement exists as its own form of
abuse separate from injury. Huegel also cites Karanjah, but in that case, the court focused on injury
resulting from physical abuse and did not address the willfulness requirement for unreasonable
confinement. 199 Wn. App. at 923-24.
Huegel also argues that his actions were meant to protect WS, so they could not constitute
abuse. Huegel may have intended to keep WS from getting injured from falling out of bed by
installing the lower bed rail, but this argument actually supports the conclusion that Huegel
intended to restrain WS by installing the lower bed rail. And it does not negate the fact that Huegel
knew he needed medical authorization and did not have it before installing the lower bed rail.
The dissent contends that the Board did not enter a finding or conclusion that Huegel
knowingly used “inappropriate” mechanical restraint. But the Board found that “the evidence
supports the fact that [Huegel] was aware his installation of the lower bed rails inflicted
unreasonable confinement on a vulnerable adult and was, thus, improper.” AR at 48. Further, the
Board’s decision incorporates the administrative law judge’s conclusions of law by reference. The
administrative law judge’s conclusions of law contain a clear statement that “the record supports
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No. 59660-1-II
a conclusion Huegel knowingly inflicted inappropriate unreasonable confinement on [WS].” AR
at 93 (emphasis added).
The dissent also reasons that WS’s family’s permission and assurances that they would
obtain medical authorization made the use of the lower bed rails reasonable and appropriate under
these circumstances. But this is not the law, and for good reason. Where a vulnerable adult is
difficult to care for, it is not hard to imagine a situation where a family’s desires to use mechanical
restraint might conflict with what the vulnerable adult’s doctors have concluded is safe or in their
best interest. The Department’s and the caregiver’s responsibility is to the vulnerable adult, not the
family, and allowing a loophole for family permission would endanger vulnerable adults.
Even though Huegel’s actions may have been motivated by a desire to protect WS from
another fall, they meet the statutory requirements for abuse of a vulnerable adult through improper
use of restraint because Huegel knowingly installed the lower bed rail without medical
authorization.
3. Huegel’s other arguments
Huegel makes several other arguments about the interpretation and application of the abuse
statute which also fail.
First, Huegel claims that he did not abuse WS because he did not restrain WS “‘for
convenience or discipline.’” Appellant’s Opening Br. at 57. However, under former RCW
74.34.020(2)(e)(ii), an individual improperly restrains a vulnerable adult if he uses mechanical
restraints “for convenience or discipline or in a manner that . . . is not medically authorized.”
(emphasis added). Thus, the Department was not required to find that Huegel acted for
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convenience or discipline. The statute’s use of “or” establishes that the Department only needed
to find that the mechanical restraint, in this case WS’s lower bed rail, was not medically authorized.
Huegel argues that the vulnerable adult abuse finding based on improper use of restraint is
erroneous, because Huegel relied on Little’s assertion that WS had a doctor’s order for the lower
bed rail. Thus, Huegel did not know that the lower bed rail was not medically authorized. However,
Huegel admitted that he did not see the medical authorization for the bed rails and knew he should
have asked for it. This makes sense because a family member’s authorization alone does not—and
should not—relieve a caregiver of the independent responsibility to avoid unreasonable
confinement of a vulnerable adult. Because Huegel was aware that he needed medical
authorization before installing the lower bed rail, and that Little’s word alone was not proper
authorization, his argument fails.
Huegel contends that he did not improperly restrain WS because WS was able to get out
of bed between the gaps in the upper and lower bed rails. Under former RCW 74.34.020(15), a
“mechanical restraint” includes “any device . . . adjacent to the vulnerable adult’s body that [they]
cannot easily remove that restricts freedom of movement.” Here, the lower bed rail was adjacent
to WS’s body, as it was attached to his bed. And the lower bed rail restricted WS’s movement
because there was limited space to get out of the bed, which was placed against a wall on the other
side. Huegel completed a training about what constitutes a restraint, so there is evidence that he
knew a lower bed rail would fall under the definition of improper restraint. Dr. Hallas’s office also
stated that, in this context, a lower bed rail would be considered a restraint. Huegel’s argument
that the lower bed rail was not a restraint thus fails.
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Huegel argues that the vulnerable adult abuse finding based on improper use of restraint is
erroneous because it was Vintage Years, not Huegel, who had a duty to obtain proper medical
authorization for the lower bed rail. However, whether Huegel had a duty to obtain medical
authorization for the bed rail is irrelevant to the Board’s decision. In this case, the ultimate question
is simply whether Huegel willfully used improper restraint against WS without medical
authorization. Under the plain terms of the statute, Huegel had a responsibility to determine
whether the lower bed rail was medically authorized for use on WS’s bed before installing it.
Former RCW 74.34.020(2)(e)(ii). This responsibility existed separately from any duty Vintage
Years had to obtain medical authorization before allowing its caregivers to install a lower bed rail.
Finally, Huegel claims that he did not abuse WS because, even if Huegel had installed the
lower bed rail, there is no proof that Huegel’s actions caused WS to fall from his bed. However,
former RCW 74.34.020(2) does not require actual injury for a finding of abuse: unreasonable
confinement alone is sufficient.
In sum, the Board did not err by concluding that Huegel’s actions met the definition of
abuse under former RCW 74.34.020.
B. Procedural Due Process
Huegel argues that the Department deprived him of a constitutionally protected liberty
interest by finding that he abused WS and placing him on a permanent registry that prevents him
from working or volunteering with vulnerable adults in the future. We disagree.
State governments may not deprive a person of life, liberty, or property without due process
of law. Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006) (citing U.S. CONST.
amend. XIV, § 1). A person has a protected liberty interest in the pursuit “of an occupation or
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profession” Id. at 219. When a state deprives a person of a protected liberty interest, “procedural
due process requires that [the] individual receive notice of the deprivation and an opportunity to
be heard to guard against erroneous deprivation.” Id. at 216.
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), outlines a
balancing test to “determine whether procedures that deprive a person of a protected interest
‘satisfy the requirements of the Fourteenth Amendment.’” Romero v. Dep’t of Soc. & Health
Servs., 30 Wn. App. 2d 323, 339, 544 P.3d 1083 (2024) (quoting In re De Facto Parentage of
A.H., 28 Wn. App. 2d 412, 425, 536 P.3d 719 (2023)). Under Mathews, we balance the protected
interest at stake, the risk that an individual will be erroneously deprived of that protected interest
under existing procedures, and the government’s interest. 424 U.S. at 335.
The Department is required to investigate reports of abuse of a vulnerable adult. Former
RCW 74.34.063(1) (2017).1 When the Department finalizes a substantiated finding that a caregiver
or other person abused a vulnerable adult, the perpetrator is put on a vulnerable adult abuse
registry. Former RCW 74.39A.056(3) (2018); WAC 388-103-0170. Placement on the registry is
permanent unless the Department determines the finding was erroneous, the finding is overturned
by judicial review, or the perpetrator passes away. WAC 388-103-0180. An individual on the
vulnerable adult abuse registry cannot “be employed in the care of and have unsupervised access
to vulnerable adults.” Former RCW 74.39A.056(2).
In Romero, this court held that the Department did not violate nursing assistants’
procedural due process rights by putting them on the permanent vulnerable adult abuse registry.
1
Although we cite to the version of these statutes in effect when this case arose, the statutory
language has not significantly changed.
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No. 59660-1-II
30 Wn. App. 2d at 339. We acknowledged that an “individual’s interest in pursuing their chosen
profession without arbitrary government interference is significant and well-established.” Id. at
342. However, “it is undisputed that [the Department] has a strong interest in protecting vulnerable
adults and in avoiding excessive administrative burdens on the agency.” Id. Though we expressed
concern with the due process implications of this kind of permanent registry, we were ultimately
bound by the law established in Fields v. Department of Early Learning, 193 Wn.2d 36, 434 P.3d
999 (2019) (plurality opinion). Id. at 345.
We reiterate those concerns here. Though Huegel’s actions meet the statutory definition
for abuse of a vulnerable adult through improper use of restraint, permanent disqualification from
his chosen profession is an extraordinary result under the circumstances of this case. Huegel may
have known that he needed medical authorization before installing the lower bed rail, but there is
no evidence on this record that Huegel acted in bad faith towards WS. In fact, looking to WS’s
behaviors before his last fall, there is evidence that WS’s family members and Huegel were
attempting to protect WS by installing the lower bed rail. Neither WS’s family, nor Vintage Years
at the time, thought that WS’s last fall was anything more than a tragic accident. Permanent
disqualification from caring for vulnerable adults is an exceptional consequence for a mistake such
as this one. Moreover, we have previously recognized:
The direct care workforce—encompassing “workers who provide essential support
services to the elderly and disabled”—“is primarily composed of low-income
women, people of color, and immigrants.” John D. Blum & Shawn R. Mathis,
Forgotten on the Frontlines: The Plight of Direct Care Workers During COVID-
19, 98 U. DET. MERCY L. REV. 325, 327, 329 (2021). “Almost half of [direct care
workers] are employed part-time, where low wages and lack of benefits often force
them to have multiple jobs.” Id. at 329. Their work is “emotionally taxing,” and the
injury rates “are high due to the physical demands inherent in providing assistance
with activities of daily living.” Id. Direct care workers also frequently face “client
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aggression and violence, sexual harassment, and discrimination.” Id. It is not
surprising that under these difficult working conditions, mistakes can happen.
Romero, 30 Wn. App. 2d at 343 (alteration in original). We acknowledge that the law does not
currently allow a more nuanced approach to single findings of abuse or neglect against a vulnerable
adult. But perhaps a more nuanced approach is worthy of legislative or Department consideration
in light of cases like this one.
In Fields, the Washington Supreme Court upheld the validity of administrative regulations
that permanently barred people with certain convictions from providing licensed childcare. 193
Wn.2d at 52. The Department’s abuse of vulnerable adult regulations operate similarly to those in
Fields, so they are not unconstitutional under that case. Romero, 30 Wn. App. 2d at 344.
Here, like the nursing assistants in Romero, Huegel received notice of the abuse finding
and requested an administrative hearing. At the administrative hearing, Huegel called and cross-
examined witnesses, presented documentary exhibits, and testified himself. After the hearing,
Huegel was able to appeal the initial order to the Board and appeal the Board’s order to superior
court. Though permanent placement on a vulnerable adult registry that severely limits Huegel’s
future opportunities in his chosen career, and is a heavy burden on a protected interest, Huegel had
access to significant procedural process before his abuse finding was finalized. Under Fields, and
given the government’s strong interest in protecting vulnerable adults, the Board’s finding of abuse
of a vulnerable adult did not violate Huegel’s procedural due process rights.
C. Arbitrary and Capricious
Huegel argues that the Board’s finding of abuse is arbitrary and capricious because it
ignored relevant facts and misapplied existing law. We disagree.
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No. 59660-1-II
This court reviews whether a final administrative decision is arbitrary and capricious de
novo. Karanjah, 199 Wn. App. at 924. “‘A decision is arbitrary and capricious if it is willful and
unreasoning, and disregards or does not consider the facts and circumstances underlying the
decision.’” Id. at 925 (quoting Stewart v. Dep’t of Soc. & Health Servs., 162 Wn. App. 266, 273,
252 P.3d 920 (2011)).
Here, the Board wrote a thorough final order reviewing the relevant facts and applying the
appropriate law. Because we affirm the challenged factual findings and legal basis for the Board’s
final order, it was not arbitrary and capricious.
ATTORNEY FEES
Huegel argues that he is entitled to attorney fees as a prevailing qualified party under RCW
4.84.350. But Huegel must prevail in order to obtain attorney fees under RCW 4.84.350(1).
Because we affirm the Board’s order in its entirety, Huegel did not prevail in a judicial review of
an agency decision. Thus, he is not entitled to attorney fees.
CONCLUSION
We affirm. We decline to award Huegel attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
GLASGOW, J.
I concur:
PRICE, J.
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No. 59660-1-II
MAXA, P.J. (dissenting) – The Department of Social and Health Services found that
Blake Huegel abused a vulnerable adult by installing a lower bed rail on WS’s bed. Former
RCW 74.34.020(2) (2019) defined abuse as a “willful” action that inflicted “unreasonable”
confinement or used “inappropriate” mechanical restraints. Because the evidence does not
support a finding that Huegel willfully inflicted unreasonable confinement or used inappropriate
restraints, I dissent.
Former RCW 74.34.020(2) stated that “abuse” means a “willful action or inaction that
inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult.”
(Emphasis added.) Former RCW 74.34.020(2) stated that “abuse” also included “improper use
of constraint.” “Improper use of restraint” included “the inappropriate use of . . . mechanical
restraints . . . in a manner that: . . . (ii) is not medically authorized.” Former RCW
74.34.020(2)(e) (emphasis added). Former RCW 74.34.020(2) did not define “willful,”
“unreasonable,” or “inappropriate.”
In Crosswhite v. Department of Social and Health Services, the court held that the term
“willfully” meant that “an abuser must knowingly inflict . . . unreasonable confinement.” 197
Wn. App 539, 551, 389 P.3d 731 (2017). Here, Huegel deliberately installed the lower bed rail,
which arguably confined WS. But there is no indication in the record that Huegel knew that
installation of the lower bed rail was “unreasonable.” Polly Little, WS’s daughter, purchased the
lower bed rail, and there was undisputed evidence that she asked that the lower bed rail be
installed for WS’s safety. Deanna Williams told an investigator that the family wanted the lower
bed rail to keep WS in his bed because he kept getting out of bed at night; they were trying to
keep him safe. Further, Little told Huegel that she was getting a doctor’s order.
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No. 59660-1-II
The Board of Appeals concluded that the installation of the lower bed rail was willful
because it was not done by accident. But under former RCW 74.34.020(2), Huegel’s deliberate
action was willful only if he knew that the action would inflict unreasonable confinement.
Under the facts of this case, any confinement inflicted by installation of the lower bed rail was
not unreasonable. The Board also focused on the fact that the lower bed rail was not medically
authorized. However, the lack of express medical authorization does not make installation of the
lower bed rail an unreasonable confinement given the fact that the family requested the lower rail
for WS’s safety.
The Board also apparently concluded that Huegel employed an “improper use of
restraint” because the lower bed rail was not medically authorized as required under former
RCW 74.34.020(2)(e)(ii). However, former RCW 74.34.020(2)(e) did not state that an improper
use of restraint occurs any time a mechanical restraint is not medically authorized. “Improper
use of restraint” means the “inappropriate” use of mechanical restraints that are not medically
authorized. Former RCW 74.34.020(2)(e) (emphasis added). The Board did not enter a finding
of fact or conclusion of law that Huegel knowingly used an inappropriate mechanical restraint.
And under the facts of this case, installation of the lower bed rail at the family’s request with the
understanding that medical authorization would be obtained was not inappropriate.
Huegel may have made a mistake in not waiting for the promised medical authorization
before agreeing to the family’s request that a lower bed rail be installed. But I would hold that
the evidence does not support the Board’s conclusion that Huegel willfully abused a vulnerable
adult.
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Therefore, I respectfully dissent.
MAXA, P.J.
32