Elizabeth Babka v. Iowa Department of Inspections and Appeals

IN THE COURT OF APPEALS OF IOWA
No. 19-1522
Filed April 14, 2021
ELIZABETH BABKA,
Petitioner-Appellant,
vs.
IOWA DEPARTMENT OF INSPECTIONS AND APPEALS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.
A registered nurse challenges the district court’s ruling affirming the
determination she committed dependent adult abuse. REVERSED.
David L. Brown and Tyler R. Smith (until withdrawal) of Hansen, McClintock
& Riley, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee.
Heard by Bower, C.J., and Vaitheswaran and Greer, JJ.
2
GREER, Judge.
It was alleged registered nurse Elizabeth Babka committed dependent adult
abuse. Following a contested hearing, an administrative law judge (ALJ) issued a
proposed decision that concluded Babka had not committed abuse. On appeal,
the director of the Iowa Department of Inspections and Appeals (DIA) adopted all
the facts of the proposed decision but came to the opposite conclusion—that
Babka did commit dependent adult abuse. This legal determination came with no
reference to relevant legal authority and was silent on how the same facts led to a
different legal conclusion. Babka appealed the decision, which the district court
affirmed on judicial review.1
As she did at the district court, Babka argues the facts do not support a legal
determination she committed dependent adult abuse.2 See Iowa Code
§ 17A.19(10)(m). She also maintains the director’s decision failed to meet the
statutory requirements for a final decision under Iowa Code section 17A.16(1).
And she argues that, under the circumstances here, the director’s failure makes
the decision unreasonable, arbitrary, capricious, and an abuse of discretion, as it
1 Unless otherwise specifically noted, references to Iowa Code chapter 17A are to
the code in force when the petition for judicial review was filed (2019), and
references to other chapters are to the code in force when the administrative
proceeding was initiated (2018).
2 In her appellate brief, Babka claims she is challenging whether substantial
evidence supports a determination of fact. See Iowa Code § 17A.19(10)(f). But
whether she committed dependent adult abuse is not a finding of fact. It is a legal
determination made by applying the law defining dependent adult abuse to the
facts regarding the actions Babka took on the night in question. See id.
§ 17A.19(10)(m). “[W]hen an agency decision on appeal involves mixed questions
of law and fact, care must be taken to articulate the proper inquiry for review
instead of lumping the fact, law, and application questions together within the
evidence of a substantial-evidence issue.” Burton v. Hilltop Care Ctr., 813 N.W.2d
250, 259 (Iowa 2012) (citation omitted).
3
is unclear what legal authority the director relied on, how he interpreted that
authority, and to what facts the interpretation was applied to reach the decision.
See id. § 17A.19(10)(n).
I. Background Facts and Prior Proceedings.
The DIA received a complaint alleging Babka committed dependent adult
abuse against a patient, V.U., during Babka’s overnight shift in the psychiatric ward
on December 31, 2017.3 Specifically, it was alleged Babka assaulted and
unreasonably punished V.U.
Following an investigation, the DIA issued a “founded” report4 of dependent
adult abuse in May 2018. It concluded, “Video evidence documents that Babka
grabbed [V.U.] by the arms, lifted her up out of the recliner and forced the resident
out of the chair towards her room. Further, when [V.U.] wouldn’t stay in her room,
Babka administered an inappropriate medication and placed [V.U.] in seclusion.”
Babka appealed, and a contested two-day hearing took place before an ALJ
in September 2018. In the November 2018 proposed decision, the ALJ reversed
the DIA’s determination Babka engaged in dependent adult abuse and the order
to put Babka’s name on the dependent adult abuse registry. In reaching this
conclusion, the ALJ found:
3 It is undisputed Babka was a caretaker and V.U. was a dependent adult at the
time. See Iowa Code § 235E.1(1) (“‘Caretaker’ means a person who is a staff
member of a facility or program who provides care, protection, or services to a
dependent adult voluntarily, by contract, through employment, or by order of the
court.”), (4) (“‘Dependent adult’ means a person eighteen years of age or older
whose ability to perform the normal activities of daily living or to provide for the
person’s own care or protection is impaired, either temporarily or permanently.”).
4 A founded determination means that the allegation of abuse was confirmed and
Babka’s name would be placed on the dependent adult abuse registry. See Iowa
Code § 235E.6.
4
V.U., the alleged dependent adult victim in this case, is a 66-
year-old woman who was admitted . . . on Friday, December 22,
2017. She has been diagnosed with bipolar disorder, . . . sleep
apnea, insomnia, among other conditions. . . .
....
V.U. was in a “manic” state . . . . Staff nursing notes, called
“Progress Notes—Encounter Notes,” reflect V.U. was getting very
little sleep and her agitation was increasing . . . .
....
Patient Tech [Sabrina] Barnes had worked with V.U. a few
days since V.U.’s admission on Friday, December 22, 2017. Ms.
Barnes was aware that V.U. had not slept much on previous nights,
and would often wander around the unit. V.U. would walk “laps”
around the unit, then sit down and color for a while, or rest in a
recliner, then get up back up and sometimes go to her room, and
then come out again. Previous night staff had let V.U. sleep in a
recliner out in the “dayroom,” which is near the nurse’s station. The
nurse’s station is behind glass. Patient Tech Barnes believed that
[V.U.] slept maybe “15 minutes here and there.”
....
. . . Babka worked the 7 p.m. to 7 a.m. shift on December 30-
31, 2017. Ms. Babka and Registered Nurse Daphne Booth were the
license[d] nurses assigned to . . . that shift. They divided up
responsibility for the 17 patients on the unit, with Babka taking
responsibility for V.U. Ms. Barnes was the Patient Tech assigned to
work with them.
....
V.U. had been assigned to a room with a roommate, but a
private room had been ordered for her beginning that night shift.
Babka and Nurse Booth told V.U. at the beginning of their shift that
she had a private room now and they wanted her to sleep in her room
that night.
....
Staff allow residents to walk around the unit and watch
television in the “dayroom,” until 11 p.m.—when the television is
turned off. Babka and the other staff did not have a problem with
V.U. being in the day room after 11 p.m., so long as she was
quiet. . . .
At some point another resident—a male diagnosed with
dementia—fell asleep on the couch in the dayroom. The male
resident had a roommate. That patient was assigned to Nurse Booth
that shift, and she did not want him disturbed because if awakened,
he would get very upset and aggressive.
Between midnight and 2 a.m. V.U. kept moving about the unit.
Sometimes she would sit in a recliner in the dayroom for about 15
minutes at a time, but then would get up again and loudly demand
medication. [A] little before 2:30 a.m., Babka noticed that V.U. was
5
rocking in the recliner and appear to be getting really drowsy. The
video footage of the area does not show V.U.’s face.
Babka walked up to V.U. and told her to the effect, “Why don’t
you go lie down in your bed.” The video shows Babka standing in
front of V.U. and talking to her, but there is no audio. Babka denies
that she woke V.U. up. She told the DIA Surveyor that V.U. was
“dozing.” . . . .
V.U. did not like what Babka said to her, and started yelling
and cursing at her. Babka called Nurse Booth to come over and help
her with V.U.
V.U. started threatening [Babka] and Nurse Booth. Nurse
Booth and Babka “nicely” told V.U. that she needed to go to her
room, that they would sit with her and get her some food. They
reminded her that she had a private room.
V.U. responded by yelling and screaming, questioning why
the man on the couch could stay out in the dayroom, but she could
not. Nurse Booth told V.U. that she needed to calm down and that
she could go to her room on her own, or they would assist her. When
V.U. did not respond, Nurse Booth said to the effect, that she would
count to 3, and if V.U. did not get up on her own, they would go
“hands on” and get her up. V.U. responded to the effect, “Go ahead
and do it, bitches.”
At that point—as verified by the video—Babka and Nurse
Booth bent over and each put an arm under V.U.’s arms and stood
V.U. up. At some point V.U. made a clenched fist and stomped on
Nurse Booth’s foot. When they tried to walk V.U. forward, she
dropped her weight and they lowered her to the floor. Nurse Booth
stepped away and called security.
....
The video shows that V.U. then got up on her own and started
to move toward the recliner. Babka blocked her from returning to the
chair and pointed her toward her room. About 2:41 a.m., the video
shows Babka walking V.U. down to her room. Another camera
shows Patient Tech Barnes at 2:44 a.m. covering up the man on the
couch with a blanket.
Shortly after that, the video shows V.U. leaving her room and
walking down the hall. Security Guard Erik Nelson takes V.U.’s hand
and she calmly walks back [to] her room.
V.U. kept wanting to leave her room. She told a security guard
who came to assist that Babka “would not give me my meds.”
Babka told V.U. that she had given her all the Seroquel that
she could give her that day, and all she had left to give was Haldol—
and that she could take it by mouth or via a shot. V.U. replied that
she would just take the shot. Security Guard Nelson held V.U.’s
hand, and she cooperated with the shot. Babka gave V.U. the Haldol
shot in her upper left arm.
6
Babka noted in V.U.’s medication records that she gave her
the Haldol injection at 2:46 a.m. Although Babka testified she gave
V.U. a choice, she charted that she [g]ave the injection after V.U.
“refused” oral medication.
V.U. remained in her room for about 15 to 20 minutes, but
then came out and resumed yelling at staff. She was redirected back
to her room. She stayed in her room a little longer after Patient Tech
Barnes brought her a radio.
At 3:29 a.m., V.U came out to the dayroom and star[ted]
yelling. She refused to be redirected. . . .
Babka then gave V.U. two choices—she could return to her
room or she could go to an open seclusion room to calm down. V.U.
picked the seclusion room, however as she walked her over to the
seclusion room, she changed her mind and wanted to go towards the
dayroom. Babka told her no, she had already picked the seclusion
room and she had to stay in there until she calmed down. She
walked V.U. into the seclusion room and left.
The seclusion room was not locked at that time. . . . Staff
considered this “open door quiet room.”
During the next 20 minutes Babka was busy with other
patients. Nurse Booth stood by the seclusion room door. According
to Nurse Booth, at one point V.U. was “running at me and trying to
push me while she was in the seclusion room. Granted I was
standing in the doorway.” . . . . Patient Tech Barnes testified that
when V.U. was put in the seclusion room, she was “banging around
in there and screaming.” Nurse Booth asked [Babka] why she just
didn’t call the doctor and get some medication for V.U.
[Babka] called Dr. Ouyang a little before 5 a.m. on December
31, 2017. She told the doctor that V.U. had been yelling and
attempting and threatening to hit staff.
Babka documented on a “Psychiatric Restrain/Seclusion
Summary” that she called Dr. Ouyang at 4:58 a.m. and told him of
V.U.’s behavior that night and what PRN’s had been administered to
her. . . . [The doctor] gave an oral order for V.U. to have a Thorazine
injection. He also gave an oral order for V.U. to be in locked
seclusion until [she] could control her behavior.
V.U. cooperated when Babka gave her a shot. She testified
that she gave V.U. the shot in her upper arm, but the guard indicated
it was in the hip.
V.U. was officially placed in locked seclusion at 5:06 a.m. on
December 31, 2017. She calmed down by 6:30 a.m. and the door
was unlocked at 6:30 a.m.
(Citations omitted.)
7
When considering whether Babka committed dependent adult abuse, the
ALJ focused on Babka’s actions of putting hands on V.U. while forcing her out of
the recliner when V.U. did not want to stand, giving V.U. injections of Haldol and
Thorazine, and placing V.U. in seclusion.
After considering the standards in section 235E.1(5), the ALJ concluded
“getting V.U. out of the recliner” was not an act of assault because, while “[t]here
is no dispute . . . Babka and Nurse Booth bent over, put their hands under V.U.’s
arms and stood her up,” “[t]he video does not reflect the action to be yanking or
pulling.” The ALJ also concluded that neither giving V.U. injections nor placing her
in seclusion constituted assault, because while those actions violated hospital
policies, “policy violations do not automatically constitute assault” under the
statute. The ALJ recognized that “it may have been more appropriate, and better
judgment, for a frustrated [Babka] to let V.U. sleep in the day room” but determined
“her lack of judgment does not by itself constitute unreasonable punishment.” The
ALJ concluded the actions Babka took following this initial escalation, the forcing
V.U. out of the chair, multiple injections to calm her down, and placing her in
seclusion, were not done to punish V.U.
The DIA appealed the proposed decision. In its brief to the director, the DIA
argued it did not need to prove Babka intended to hurt or harm V.U. for a
determination she committed dependent adult abuse. Pointing out that Iowa Code
section 235E.1(5)(a)(1) includes in the definition of assault “any act which is . . .
generally intended to result in physical contact which would be considered by a
reasonable person to be insulting or offensive,” the DIA argued Babka’s actions of
waking V.U. when she was not causing a disturbance and then physically removing
8
her from the chair met the standard for assault. The DIA also argued that Babka
unreasonably punished V.U. when V.U. was forced to go into seclusion because
she would not follow Babka’s orders to remain in her room. In response, Babka
asserted she did not have the requisite intent to assault V.U.; “[i]n raising V.U. from
her recliner, [Babka] and [Nurse Booth] merely intended to move V.U. to her private
room so as not to disturb the other patients.” She maintained her “intent throughout
the night was to deescalate her aggravated patient” and noted some of her actions
were supported by order of a doctor.
In the written February 2019 decision, the director adopted the findings of
fact of the proposed decision in their entirety. Even so, the director found Babka
committed dependent adult abuse, stating:
Upon reviewing the record, I conclude that the Department
presented sufficient evidence to support the determination that
[Babka’s] actions constituted dependent adult abuse (assault and
unreasonable punishment). However, the video is such a key piece
of central evidence in this case that the lack of any audio recording
from the dayroom incident between V.U. and [Babka] is problematic.
Accordingly, I conclude that the dependent adult abuse in this case
is “minor, isolated, and unlikely to reoccur.” Iowa Code
§ 235E.2(1)(c). [5]
For these reasons, I reverse the ALJ’s proposed decision and
modify the Department’s determination to Confirmed, Not
Registered.
5 Iowa Code section 235E.2(1)(c) provides, in part:
A report of dependent adult abuse that meets the definition of
dependent adult abuse under section 235E.1, subsection 5,
paragraph “a”, subparagraph (1), subparagraph division (a) or (d), or
section 235E.1, subsection 5, paragraph “a”, subparagraph (3),
which the department determines is minor, isolated, and unlikely to
reoccur shall be collected and maintained by the department of
human services as an assessment only for a five-year period and
shall not be included in the central registry and shall not be
considered to be founded dependent adult abuse.
9
Babka filed a petition for judicial review. In her brief to the district court, Babka
emphasized that the director adopted the facts of the proposed decision but
reversed the legal determination, stating:
The grounds for this reversal are non-existent in the Director’s order.
The Director does not designate any error, either legal or factual, in
[the ALJ’s] proposed decision. In fact, the Director agrees that the
Department’s key evidence, the video surveillance, is “problematic”
given that it does not show video footage of key moments and does
not have audio.
Babka asserted the deficiencies in the ruling made it unreasonable, arbitrary,
capricious, and an abuse of discretion. Babka also challenged the director’s
underlying determination that the facts supported a legal finding that Babka
committed dependent adult abuse. The DIA maintained the decision should be
affirmed because, “[w]hile the final order did not explain where exactly the Director
disagreed with the proposed decision, the legal errors contained within the
proposed decision are obvious.” The DIA argued the ALJ erred by “ignoring the
‘insulting or offensive’ prong of the test for assault of a dependent adult” and that
the facts, as adopted by the director, met this standard for assault. It also argued
the director’s determination Babka unreasonably punished V.U. should be affirmed
because
[w]hether Babka’s actions consisted of unreasonable punishment
must depend on the justification for the actions. Based on the
applicable standard of contact, Babka was required to consider only
V.U.’s or others’ physical safety as justifications for taking actions
which restrained V.U.’s movement or placed her in seclusion. The
fact that Babka took these actions where V.U.’s or others’ physical
safety was not at risk strongly suggests some other motivation for
Babka’s actions. It was reasonable for the Director to conclude that
the findings of fact as laid out in the Proposed Decision supported a
finding that Babka unreasonably punished V.U.
10
At a hearing before the district court, the DIA acknowledged some limitations of
the written decision but encouraged the court to affirm the ruling because, when
the evidence was reviewed, there was substantial evidence to support a finding
abuse was committed.
The district court affirmed the decision of the director with one exception.
The district court found there was not substantial evidence for the allegations of
unreasonable punishment by use of the medication injections or by use of the
seclusion room. And “[t]he court under[stood] and share[d] Babka’s frustration with
the lack of explanation provided by the director in reversing the ALJ’s proposed
decision” but determined “little or no explanation is required.” From its review of
the record, the district court emphasized certain findings from the proposed
decision, stating:
VU was dozing or sleeping in the recliner in the dayroom;
Ms. Babka woke or disturbed VU for the purpose of requiring
her to get up from the recliner and go to her room;
VU did not want to get up from the recliner;
at that time, VU was not acting in a manner indicating a threat
to harm herself or others;
Ms. Babka knew VU did not want to be forced to get out of the
recliner and go to her room;
Ms. Babka intentionally put her hands on VU and lifted her out
of the recliner against her will.
Based on these handpicked facts, the district court found:
These facts would justify a conclusion that Ms. Babka committed an
act generally intended to result in physical contact which would be
considered by a reasonable person to be insulting or offensive.
These facts would also justify a conclusion that Ms. Babka inflicted
unreasonable punishment on VU. The Director’s conclusion, then is
not without regard to the law or underlying facts. Certainly,
reasonable minds could conclude the same as did the Director.
Further, the Director’s application of the law to these facts would not
be irrational, illogical, or wholly unjustifiable.
11
Babka appeals.
II. Analysis.
Babka maintains the district court erred in affirming the director’s decision.
See Langley v. Emp. Appeal Bd., 490 N.W.2d 300, 3020 (Iowa Ct. App. 1992)
(“The scope of review in cases arising out of the Iowa Administrative Procedures
Act is limited to the correction of errors at law. A district court decision rendered
in appellate capacity is reviewed to determine whether the district court correctly
applied the law.” (citation omitted)). First, she argues the facts adopted by the
director do not support a legal determination she committed dependent adult
abuse. See Iowa Code § 17A.19(10)(m). Second, she contends the director’s
reversal of the legal conclusion of the proposed decision, without explanation or
citation to authority, and after the wholesale adoption of the facts in the proposed
decision, makes the resulting decision unreasonable, arbitrary, capricious, or an
abuse of discretion and violates the statutory requirements for a final decision
under section 17A.16(1). See id. § 17A.19(10)(n) (providing that the court may
provide appropriate relief when the agency action is “[o]therwise unreasonable,
arbitrary, capricious, or an abuse of discretion”). We consider Babka’s second
argument first.
Section 17A.16(1) requires that
[a] proposed or final decision or order in a contested case shall be in
writing or stated in the record. A proposed or final decision shall
include findings of fact and conclusions of law, separately stated. . . .
Each conclusion of law shall be supported by cited authority or by a
reasoned opinion.
“We believe the deference courts are required to give [the director’s] findings of
fact in a direct appeal . . . carries with it a correlative duty on [the director’s] part to
12
state the evidence he [or she] relies upon and specify in detail the reasons for his
[or her] conclusions.” Catalfo v. Firestone Tire & Rubber Co., 213 N.W.2d 506,
510 (Iowa 1973). We “recognize our duty to broadly and liberally apply the
[agency’s] findings to uphold rather than to defeat the [agency’s] decision.” IBP,
Inc. v. Al-Gharib, 604 N.W.2d 621, 634 (Iowa 2000). And we do not expect
agencies to produce legal treatises for their decisions. See Ward v. Iowa Dep’t of
Transp., 304 N.W.2d 236, 238 (Iowa 1981) (pointing out agency decision’s failure
to comply with statutory requirement of separately stating the facts and
conclusions of law but considering the merits of the claim because “it is possible
to work backward and to deduce what must have been his legal conclusions”). But
the “decision must be sufficiently detailed to show the path [the director] has taken
through conflicting evidence.” Catalfo, 213 N.W.2d at 510. In addressing the
application of the statute involved, we review for correction of errors at law. State
v. Lindell, 828 N.W.2d 1, 4 (Iowa 2013).
Here, the district court reviewed the record and picked facts it decided
“would justify” the conclusion reached by the director. This review is too simplistic.
We are required to determine whether the director “acted arbitrarily or misapplied
the law.” Catalfo, 213 N.W.2d at 510. We cannot allow our judicial review to
become meaningless. See id. (citing United States v. Chi., Milwaukee, St. Paul. &
Pac. R.R. Co., 294 U.S. 499, 511 (1935) (“We must know what a decision means
before the duty becomes ours to say whether it is right or wrong.”); E.-Cent. Ass’n
v. United States, 321 U.S. 194, 212 (1944) (“We only require that, whatever result
be reached, enough be put of record to enable us to perform the limited task which
is ours.”)).
13
The director’s written decision here makes our charge impossible. We do
not know what actions of Babka’s the director concluded constituted assault and
unreasonable punishment. Additionally, the legal definition requires that the abuse
result from the actor’s “willful misconduct or gross negligence or reckless acts or
omissions.” See Iowa Code § 235E.1(5)(a)(1). In the proposed decision, the ALJ
laid out definitions for the three terms—willful misconduct, gross negligence, and
recklessness—before determining Babka lacked the necessary mens rea to
commit dependent adult abuse. Because the director’s ruling is silent on this
element, we cannot tell which—if any—of the intent elements he found to have
applied to Babka’s actions. Cf. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d
904, 909 (Iowa 1987) (noting the court “should not have to undertake such a
deductive process when reviewing an agency decision” but the agency has fulfilled
the requirements of section 17A.16(1) when the court is able “to work backward
[from the agency’s written decision] to deduce what must have been the [the
agency’s] legal conclusions” (alterations in original)). It is possible the director
failed to consider this necessary step altogether; we cannot tell by reviewing the
written ruling. Such a failure would make the decision arbitrary and capricious.
See Iowa Code § 17A.19(10)(n); see also Norland, 412 N.W.2d at 912 (“The term
‘arbitrary’ when applied to test the propriety of agency action means the action
complained of was without regard to the law or consideration of the facts of the
case. In this context, ‘arbitrary’ and ‘capricious’ are ‘practically synonymous.’”
(citations omitted)). Likewise, the district court’s analysis offered no insight into
how willful misconduct, gross negligence, and reckless acts played into the final
14
conclusion of dependent adult abuse. So in our role we tackle these omissions to
determine how they impact the final decision.
Adult Dependent Abuse under Chapter 235E.
But we start with what we do know here. Our legislature protects vulnerable
dependent adults. To do so, the legislature established a dependent adult abuse
program with a structure for identifying and addressing abuse of dependent adults.
See Iowa Code ch. 235B. In 2008, the legislature added Iowa Code chapter 235E
with a statutory framework surrounding dependent adult abuse in a facility or
program.6 See 2008 Iowa Acts ch. 1093, §§ 11–15. Using the later statutory
authority, the DIA concluded Babka committed dependent adult abuse in the forms
of assault and unreasonable punishment, under section 235E.1(5)(a)(1)(a). The
DIA notice confirmed the case decision “[a]s a result of the Alleged
Perpetrator/Caretaker’s willful misconduct and/or gross negligence and/or reckless
acts and/or omissions, the allegation is Founded.”
The ALJ analyzed the standard applied to Babka’s actions:
Looking at the language in section 235E.1(5) as a whole, DIA
is required to show the following in this case:
That Appellant Babka’s physical contact with V.U.
resulted from the willful misconduct or gross negligence or
reckless acts of Appellant Babka;
and
That Appellant Babka intended to cause pain or injury
to V.U. or intended the physical contact to be insulting or
offensive to V.U.
6 In chapter 235E, a “‘[f]acility’ means a health care facility as defined in section
135C.1 or a hospital as defined in section 135B.1,” and a “‘[p]rogram’ means an
elder group home as defined in section 231B.1, an assisted living program certified
under section 231C.3, or an adult day services program as defined in section
231D.1.” Iowa Code § 235E.1(6), (9).
15
In DIA’s rules, willful misconduct is defined as “an intentional
act of unreasonable character committed with disregard for a known
or obvious risk that is so great as to make it highly probable that harm
will follow.” Gross negligence has been defined as “an extreme
departure from the ordinary standard of care.” “Recklessly” is
statutorily defined to mean “a gross deviation from the standard
conduct that a reasonable person would observe in the situation.”
The term “gross deviation” is not further defined, but other
jurisdictions have stated that a failure to perceive a substantial risk is
a gross deviation from the standard of ordinary care that a
reasonable person would observe in the situation.
The use in Iowa Code 235E.1(5) of these terms—willful
misconduct, gross negligence, recklessly, and gross deviation—
demonstrates that more than mere negligence is required. A
caretaker cannot accidentally commit an assault in the dependent
adult abuse context.
(Citations omitted). Yet, in its brief, the DIA argues the ALJ “ignored half of the
statute defining the dependent adult abuse.” The DIA contends “[i]t is not only
‘pain or injury’ that would result in a finding of assault, but it is also ‘physical contact
which would be considered by a reasonable person to be insulting or offensive.’”
The DIA advocates for a general intent standard suggesting Babka did not have to
intend to assault V.U. but instead she “need only to intend to do the act that
constitutes the assault” and thus the ALJ applied the wrong analysis. The DIA also
maintains the ALJ incorrectly determined Babka’s actions did not amount to
unreasonable punishment.
Under the allegations here, “dependent adult abuse”7 means
7 DIA addresses dependent adult abuse in its rules as:
“Dependent adult abuse” means any of the following as a result of
the willful misconduct or gross negligence or reckless act or omission
of a caretaker, taking into account the totality of the circumstances:
physical injury, unreasonable confinement, unreasonable
punishment, assault, sexual offense, sexual exploitation,
exploitation, neglect, or personal degradation.
Iowa Admin. Code r. 481-52.1.
16
1. Any of the following as a result of the willful misconduct or
gross negligence or reckless acts or omissions of a caretaker, taking
into account the totality of the circumstances:
a. A physical injury to, or injury which is at a variance with the
history given of the injury, or unreasonable confinement,
unreasonable punishment, or assault of a dependent adult which
involves a breach of skill, care, and learning ordinarily exercised by
a caretaker in similar circumstances. “Assault of a dependent adult”
means the commission of any act which is generally intended to
cause pain or injury to a dependent adult, or which is generally
intended to result in physical contact which would be considered by
a reasonable person to be insulting or offensive or any act which is
intended to place another in fear of immediate physical contact which
will be painful, injurious, insulting, or offensive, coupled with the
apparent ability to execute the act.
Iowa Code § 235E.1(5)(a)(1)(a) (emphasis added).
Only the ALJ applied the qualifying language defining the nature of the act
or omission required to constitute an abuse. The director, the district court, and
the DIA are all silent on these hurdles to reach a finding of abuse. We ask what
did the legislature intend by requiring the act or omission to result from willful
misconduct, gross negligence, or reckless acts?
Granted, we find no case law guidance about how to apply this section of
the Iowa Code. So we begin our quest with the text of the statute. See Gardin v.
Long Beach Mortg. Co., 661 N.W.2d 193, 197 (Iowa 2003). The purpose of
statutory interpretation is to determine legislative intent. See, e.g., In re Estate of
Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012). “We do not search beyond the
express terms of a statute when that statute is plain and its meaning is clear.”
Gardin, 661 N.W.2d at 197. We also read a statute as a whole to reach “a sensible
and logical construction.” Id. (citation omitted). When the debate is over a word
or phrase, we examine the context in which it is used. Exceptional Persons, Inc.
v. Iowa Dep’t of Human Servs., 878 N.W.2d 247, 251 (Iowa 2016). “We give words
17
their ordinary and common meaning by considering the context within which they
are used, absent a statutory definition or an established meaning in the law.” Doe
v. Iowa Dep’t of Human Servs., 786 N.W.2d 853, 858 (Iowa 2010). “We also
consider the legislative history of a statute, including prior enactments, when
ascertaining legislative intent.” Id. “When we interpret a statute, we assess the
statute in its entirety, not just isolated words or phrases.” Id. Likewise, we consider
“the statute’s ‘subject matter, the object sought to be accomplished, the purpose
to be served, underlying policies, remedies provided, and the consequences of the
various interpretations.’” State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006)
(citation omitted).
From our viewpoint, use of terms such as “gross negligence,” “reckless”
behavior, and “willful misconduct” demands behavior more than what is negligent
or a misinterpretation of a work policy. And the DIA’s internal definitions suggest
the same. Those terms are defined by the DIA:
“Gross negligence” means an act or omission that signifies
more than ordinary inadvertence or inattention, but less than
conscious indifference to consequences; and, in other words, means
an extreme departure from the ordinary standard of care.
....
“Recklessly” means that a person acts or fails to act with
respect to a material element of a public offense, when the person is
aware of and consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from the act or
omission. The risk must be of such a nature and degree that
disregard of the risk constitutes a gross deviation from the standard
conduct that a reasonable person would observe in the situation.
....
“Willful misconduct” means an intentional act of unreasonable
character committed with disregard for a known or obvious risk that
is so great as to make it highly probable that harm will follow.
Iowa Admin. Code r. 481-52.1.
18
Along with the general meanings of these terms, other references suggest
the intentional nature intended. For example, gross negligence is defined
elsewhere by our legislature as “such lack of care as to amount to wanton neglect
for the safety of another.” Iowa Code § 85.20(2). Recklessness is “conduct
evidencing either a willful or wanton disregard for the safety of others.” State v.
Kernes, 262 N.W.2d 602, 605 (Iowa 1978). When the statutory meaning of willful
misconduct is reviewed, we have said it requires a “willful intent to do wrong [and]
an evil purpose upon the part of the accused, . . . by clear, convincing, satisfactory
evidence.” State v. Watkins, 914 N.W.2d 827, 837 (Iowa 2018) (alterations in
original) (citation omitted).
Likewise, we gain confidence in our analysis by reviewing our supreme
court’s treatment of the similar standards under chapter 235B. In Wyatt v. Iowa
Department of Human Services, a nurse tried to muffle noise from a distressed
patient with a pillow to avoid waking a seriously ill patient next door. 744 N.W.2d
89, 91 (Iowa 2008).8 As here, after accepting the factual findings of the ALJ, the
director reversed the ALJ decision, which found no abuse, concluding instead that
the placing of the pillow over the mouth of the dependent adult was not part of the
care plan and a reasonable person would consider that physical contact as
insulting or offensive. Id. at 92. The district court disagreed with the director and
found no abuse occurred because Wyatt acted with no specific intent to assault
the resident. Id. at 93. In Wyatt, under chapter 235B the dependent adult abuse
8 Wyatt came before Iowa Code chapter 235E was enacted.
19
definition had different qualifying language to describe the actor’s behavior.
Section 235B.2(5)(a)(1)(a) reads
“Dependent adult abuse” means:
(1) Any of the following as a result of the willful or negligent
acts or omissions of a caretaker:
(a) Physical injury to, or injury which is at a variance with the
history given of the injury, or unreasonable confinement,
unreasonable punishment, or assault of a dependent adult.
(Emphasis added.) Much like the argument here, the DIA argued the definition
allowed for a lesser showing that the intended physical conduct could be
objectively viewed as insulting or offensive as opposed to a requirement that the
actor have a specific intent to offend or insult the patient. Wyatt, 744 N.W.2d at
94. Despite the reference to “negligent” in the definition, Wyatt clarified that
because the internal rules defined assault as that defined in Iowa Code section
708.1,9 it would apply the elements from Iowa case law requiring a specific intent
to commit the act. Id. at 94–95 (confirming the State must show not only that the
actor intended to make physical contact, but that they intended that physical
contact to be insulting or offensive for a finding of assault (citing State v. Keeton,
710 N.W.2d 351 (Iowa 2006)). True, while the internal rules involving chapter 235E
do not directly reference the criminal code, the dependent adult abuse definition in
9Iowa Administrative Code rule 441-176.1(2) provides, “‘Assault’ means ‘assault’
as defined in Iowa Code section 708.1.” And section 708.1(2)(a) provides:
A person commits an assault when, without justification, the
person does any of the following:
a. Any act which is intended to cause pain or injury to, or which
is intended to result in physical contact which will be insulting or
offensive to another, coupled with the apparent ability to execute the
act.
b. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious, insulting,
or offensive, coupled with the apparent ability to execute the act.
20
chapter 235E contains similar language to section 708.1.10 And unlike chapter
235B where there is reference to negligent acts, the language of chapter 235E
seems to require some component of intentional behavior. Moreover because of
the required showing of willful misconduct, gross negligence, or reckless acts or
omissions of the actor in chapter 235E, we cannot accept DIA’s argument that a
general intent to commit an assault is the appropriate standard required.
Relying on the fact finding performed by the ALJ and incorporated in full into
the final order of the director, we apply our analysis of the statutory language to
the conclusion of the director and district court as to each allegation of abuse.
Assault: Section 235E.1(5)(a)(1)(a).
We start with the allegations themselves. Characterizing the actions as
insulting or offensive, the DIA contends the assault allegations derive from Babka
removing V.U. from the recliner, physically restraining her in the seclusion room,
and administering medication through injection. Babka argues any actions by her
focused on good care for the patient and were not done with an intent to harm.
First, V.U. had been on the ward for several days, was suffering from a manic
10 Compare Iowa Code § 708.1(2)(a), (b) (defining assault in a criminal context as
“[a]ny act which is intended to cause pain or injury to, or which is intended to result
in physical contact which will be insulting or offensive to another, coupled with the
apparent ability to execute the act” and “[an]y act which is intended to place
another in fear of immediate physical contact which will be painful, injurious,
insulting, or offensive, coupled with the apparent ability to execute the act”), with
id. § 235E.1(5)(a)(1)(a) (defining dependent adult abuse, in part, as “the
commission of any act which is generally intended to cause pain or injury to a
dependent adult, or which is generally intended to result in physical contact which
would be considered by a reasonable person to be insulting or offensive or any act
which is intended to place another in fear of immediate physical contact which will
be painful, injurious, insulting, or offensive, coupled with the apparent ability to
execute the act”).
21
bipolar episode, and had slept for less than two and a half hours each night. Earlier
in the day, V.U. had been cussing and threatening to hit staff in her agitated state.
Knowing it would help her condition if she slept, staff reserved a private room for
V.U. that evening. The private room would prevent waking the other residents,
which had happened with V.U.’s roommate in the past, and would also encourage
V.U. to sleep. A video from the common area where V.U. sat in the recliner has
no audio. Babka testified that V.U. was drowsy and not yet asleep when she
approached to direct her once again back to the private room.11 As happened
earlier in the shift with other staff, V.U. became agitated with Babka and the other
nurse who came to help. The two nurses used a transport hold to lift her from the
chair and redirect her to the private room.
Like Wyatt, Babka also expressed concern for other patients on the unit.
On top of the concerns about V.U., a patient sleeping in the common area on the
couch could not be in his room with a roommate and if awakened would become
agitated and aggressive. V.U.’s behavior risked awakening that patient. Babka
also had concerns V.U. would wake other patients asleep in their rooms with her
yelling at the nurses. The situation escalated when V.U. threatened one of the
nurses and stomped on her foot. With all of those concerns at hand, Babka
directed V.U. to her private room. While Babka admitted later there may have
been another way to handle the evening, we do not find her behavior constitutes
an intentional act or reckless disregard for the patient.
11There is a conflicting statement from Babka that she woke V.U., but Babka also
pointed to movement and rocking from the patient that occurred shortly before
Babka engaged the patient. Regardless, the ALJ explicitly did not conclude Babka
“woke V.U. up from a sound sleep.”
22
We look to the totality of the circumstances as the statute directed. Babka
was a seasoned nurse with no previous disciplinary complaints. Babka’s
continuous direction of V.U. back to the private room based on the nurse’s concern
for V.U.’s need for sleep met a goal for V.U.’s care. V.U.’s manic condition would
benefit from more sleep than an hour or two each night. Likewise, Babka
reasonably explained that the escalation and increased volume of V.U. led to the
decision to use the quiet time out room. Babka inflicted no bruises or physical
injuries to V.U. No one ever interviewed V.U. or her family about the incident. V.U.
continually asked for more medications. The first medication available was under
PRN status and could be given orally or by injection. Babka testified she offered
it orally or through injection and V.U. chose by injection. The video shows V.U.
calmly accepting the injection. Babka’s call to the psychiatrist led to the final
injection and the closed seclusion room as the psychiatrist ordered. Even the
district court found there was little factual support for the allegation that Babka
committed abuse by administering shots to V.U. The video is inconclusive to
dispute Babka’s version of the events. The testimony of Barnes was not found to
be credible. Babka’s supervisor adamantly testified there was no malice on the
part of Babka in her actions and other than some “coaching” saw no reason to
punish her. Under the appropriate statutory standard and after considering the
totality of the circumstances, we find there is not substantial evidence of an assault
on V.U. by Babka.
The DIA also emphasizes Babka’s choices that evening violated policies
established by the facility. In a work environment, we acknowledge the possibility
that directives might collide with decisions made in the moment. But the DIA
23
cannot couple the failure to meet best work practices with Babka’s behavior to
extract an assault finding. Here, the next day after a group meeting with the
supervisor and all staff involved in the incident, actions were reviewed and the
meeting provided a “teaching moment.” No one was sanctioned after that meeting.
No employment action occurred until after the abuse notification issued. While the
failure to follow exactly the work policies might show poor judgment, an assault
does not automatically follow from that characterization. We cannot base an
assault finding on a failure to exercise work policies alone. Because the DIA failed
to show Babka met the willful misconduct, gross negligence, or reckless acts or
omissions standards constituting the requisite intent to assault V.U., we vacate the
judgment of the district court on those grounds.
Unreasonable Punishment: Section 235E.1(5)(a)(1)(a).
As for the second allegation, the DIA also cited Babka for unreasonable
punishment of V.U. Again, this citation is qualified by the willful misconduct, gross
negligence, or reckless acts or omissions of the actor standards in chapter 235E.
Under the Administrative Code, “unreasonable punishment” means
a willful act or statement intended by the caretaker to punish, agitate,
confuse, frighten, or cause emotional distress to the dependent
adult. Such willful act or statement includes but is not limited to
intimidating behavior, threats, harassment, deceptive acts, or false
or misleading statements.
Iowa Admin. Code r. 481-52.1. On its face, the rule provides for intentional conduct
by the caretaker. Babka testified that V.U. refused to return to her private room
but was still yelling and agitated. Babka offered a quiet room—the seclusion
room—which V.U. agreed to use. An internal work policy provided for a “time out”
as a “procedure used to assist the individual to regain emotional control by
24
removing the individual from his/her immediate environment and restricting the
individual to a quiet area or unlocked quiet room.” Babka opted for that option to
help calm V.U., keep her from waking others, and avoid the possibility V.U. might
act on her threats to harm the nurses. It was not until the psychiatrist ordered the
locked isolation that the seclusion room was locked. We agree with the district
court that there is not substantial evidence to support unreasonable punishment
by use of the isolation room.
To finish our review, we cannot help but note the director’s final decision
offers no guidance on the application of the law to the facts developed here. The
ALJ’s decision does. The ALJ recited eleven pages of specific factual findings.
The director incorporated those “accurate” findings. Likewise, the district court
commented, “[t]here is no dispute as to the factual findings set forth by the [ALJ]”
and then referenced several of those findings in its decision. We recognize the
ALJ saw the witnesses in “real time” and could and did make credibility findings.
On our review, we see no reason to disagree with the facts and credibility
determinations as made and summarized by the ALJ and find them supported by
the record.
III. Conclusion.
We reverse the district court and dismiss all allegations of dependent adult
abuse against Babka. We order the DIA to take any action necessary to implement
this decision.
REVERSED.
Bower, C.J., concurs; Vaitheswaran, J., concurs specially.
25
VAITHESWARAN, Judge (concurring specially).
I specially concur. Elizabeth Babka argues “[a]gencies cannot arbitrarily
make a finding of abuse without evidentiary support.” This assertion implicates the
substantial evidence standard of review. See Iowa Code section 17A.19(10)(f).
“Evidence is substantial if ‘the quantity and quality of evidence . . . would be
deemed sufficient by a neutral, detached, and reasonable person, to establish the
fact at issue when the consequences resulting from the establishment of that fact
are understood to be serious and of great importance.’” Gumm v. Easter Seal
Soc’y of Iowa, Inc., 943 N.W.2d 23, 33 (Iowa 2020) (alteration in original) (quoting
Iowa Code § 17A.19(10)(f)(1)).
The administrative law judge found “the evidence inconclusive that
Appellant Babka woke V.U. up from a sound sleep.” The administrative law
judge also found the evidence did “not support the allegations that [Babka] went
‘hands on’ in getting V.U. out of the recliner in a deliberately hurtful manner.”
Finally, the administrative law judge discredited the statements of the patient
technician who stated Babka “yanked” and “grabbed” V.U. I believe the
administrative law judge’s findings of fact—adopted in full by the director—were
supported by substantial evidence. See Evenson v. Winnebago Indus., Inc., 881
N.W.2d 360, 366 (Iowa 2016) (“An agency’s decision does not lack substantial
evidence because inconsistent conclusions may be drawn from the same
evidence.” (quoting Coffey v. Mid Seven Transp. Co., 831 N.W.2d 81, 89 (Iowa
2013))); cf. Olutunde v. Iowa Dep’t of Human Servs., No. 17-1650, 2018 WL
6422881, at *6 (Iowa Ct. App. Dec. 5, 2018) (finding “substantial evidence in the
26
record to support DHS’s conclusion” that a person “did not receive all of her
medication as prescribed and this was due to negligent supervision and training
by” a caretaker); Menegbo v. Iowa Dep’t of Inspections & Appeals, No. 07-0170,
2007 WL 4553345, at *3 (Iowa Ct. App. Dec. 28, 2007) (finding substantial
evidence to support the department’s “findings that [the caretaker] committed
dependent adult abuse”); Sciacca v. Iowa Dep’t of Human Servs., No. 06-1276,
2007 WL 2004531, at *3 (Iowa Ct. App. July 12, 2007) (concluding substantial
evidence supported the agency’s findings that the caretaker committed dependent
adult abuse); but see Mosher v. Dep’t of Inspections & Appeals, Health Facilities
Div., 671 N.W.2d 501, 518 (Iowa 2003) (concluding agency’s finding that a person
was a dependent adult was “not supported by substantial evidence”).
That said, I do not believe those fact findings support the director’s
determination that Babka committed dependent adult abuse. I concede the
department is clearly vested with discretion to apply law to fact, rendering our
review subject to the more deferential “irrational, illogical, or wholly unjustifiable”
standard. See Iowa Code § 17A.19(10)(m); Banilla Games, Inc. v. Iowa Dep’t of
Inspections & Appeals, 919 N.W.2d 6, 18 (Iowa 2018). But even after affording
the director the deference he is due, I am hard-pressed to divine how Babka’s
conduct as found by the director resulted from “willful misconduct or gross
negligence or reckless acts or omissions.” See Iowa Code § 235E.1(5)(a)(1);
accord AOL LLC v. Iowa Dep’t of Revenue, 771 N.W.2d 404, 410 (Iowa 2009)
(concluding the petitioner met the “demanding burden” of establishing the
department’s application of law to fact was irrational, illogical, or wholly
unjustifiable); Greenwell v. Emp. Appeal Bd., 879 N.W.2d 222, 228 (Iowa Ct. App.
27
2016) (concluding agency improperly applied law to fact in determining reoccurring
acts of negligence satisfied the misconduct standard); cf. Sciacca, 2007 WL
2004531, at *3 (concluding “the agency’s determination that [caretaker’s] actions
constituted assault was not ‘irrational, illogical, or wholly unjustifiable’”).
Finally, to the extent the director’s decision involved an interpretation of
chapter 235E, I am persuaded the interpretation was either “irrational, illogical, or
wholly unjustifiable” under the more deferential standard or erroneous under the
less deferential standard. See Iowa Code § 17A.19(10)(c), (l); Christensen v. Iowa
Dep’t of Revenue, 944 N.W.2d 895, 899–900 (Iowa 2020); see also Wyatt v. Iowa
Dep’t of Human Servs., 744 N.W.2d 89, 94–95 (concluding the State erred in
interpreting the intent element of assault in the definition of dependent adult
abuse); Burrage v. Iowa Dep’t of Inspections & Appeals, No. 12-2007, 2013 WL
5229773, at *1 (Iowa Ct. App. Sept. 18, 2013) (concluding agency erred in
interpreting the definition of dependent adult abuse).
For these reasons, I concur in reversal of the agency decision.