ADMINISTRATIVE LAW JUDGE DISMISSES EXCLUSION OF FILIPINO CAREGIVER FROM ALL RESIDENTIAL CARE FACILITIES FOR RECEIVING $56,200.00 GIFT FROM ELDERLY

By:

Roman P. Mosqueda, Esq.

            Administrative Law Judge Vincent Nafarrete of the Office of Administrative Hearings over-ruled the determination of the California Department of Social Services to exclude a Filipino caregiver from employment in, presence in, or contact with clients of any licensed community care facility in California, in a case of first impression.

            He also dismissed the accusation and order of exclusion issued by the Department against the Filipino caregiver, by Proposed Decision dated January 18, 2007, received by the Department on January 23, 2007, and by this Author, representing the Filipino caregiver, on January 26, 2007.  The Department has not as yet adopted, changed, or rejected this proposed decision.

            After a one-day hearing on November 20, 2006, Judge Nafarrete found, among other things, that the respondent Filipino caregiver was employed as a caregiver in a Rancho Palos Verdes residential care facility for the elderly from on or about February 22, 1999, until April 12, 2006.

Department’s Exclusion Order

And Respondent’s Appeal:

            Indeed, on April 12, 2006, the Department issued to the Filipino caregiver, whose identity is withheld to protect his privacy, an Order to Individual of Immediate Exclusion from all Facilities, after “it had conducted an investigation and substantiated a complaint of ‘fiduciary abuse’ against the respondent.”

            Judge Nafarrete further found that “(t)he Department determined that respondent’s continued or future contact with clients or presence in any licensed facility was a threat to the clients’ health and safety and ordered that he immediately remove himself from any contact with clients and not be physically present in any facility.”

            The respondent Filipino caregiver appealed therefrom; and thereafter retained this Author to represent him in his appeal.  On or about June 29, 2006, this Author filed respondent’s Notice of Defense and request for a community care licensing hearing to permit him to present his defense to the charges contained in the Accusation (Exclusion Action).  After an exchange of request for discovery and responses thereto by the Department and respondent, the hearing was conducted by Administrative Law Judge Vincent Nafarrete on November 20, 2006.

Issues To Be Resolved As

Framed By Accusation:

            As framed by the Department’s Accusation (Exclusion Order) in Case No. 6106247002, made and filed on behalf of Jo Frederick, Deputy Director, Community Care Licensing Division, Department of Social Services, State of California, against the respondent Filipino caregiver, the issues to be resolved by the Office of Administrative Hearings, through Administrative Law Judge Vincent Nafarrete, were:

            (1)  Did Respondent Filipino caregiver violate the “personal rights” of resident number one by accepting $56,200.00 from him (through her daughter), an 86-year-old physically disabled, double amputee suffering from depression, under California Health and Safety Code Section 1569.58(a) and Regulation Section 87572(a)(1)?

            (2)  Did Respondent commit “conduct inimical to the health, morals, welfare, or safety” of resident number one by accepting the $56,200.00 “gift,” under Health and Safety Code Section 1569.58(a)(2)?

            As admitted by Noah Allen, Staff Counsel of the Department of Social Services, who represented the Deputy Director of the Department during the November 20, 2006 hearing, upon inquiry by Judge Nafarrete, there is no applicable case law to the Exclusion Action against the respondent Filipino caregiver based on applicable laws and regulations.

Filipino Caregiver’s And Department’s

Positions On Issues Under Accusation:

            In Respondent’s Closing Brief filed on December 20, 2006, after the hearing, this Author argued that the Department has not shown by a preponderance of the evidence, pursuant to Health and Safety Code Section 1569.58(e), that the respondent violated the “personal rights” of resident number one, under Health and Safety Code Section 1569.58(a) and Regulation Section 87572(a)(1).  And even if he did, there is no authorized sanction of lifetime ban from employment in any licensed facility.  At most, the Department can stop a licensee from continuing the employment of an erring employee.

            The Department has not shown how accepting $56,200.00 from resident number one violated the latter’s personal rights.  Indeed, there are uncontroverted evidence from the testimonies of two (2) witnesses presented by this Author for the respondent and of the daughter of resident number one that the gifts of resident number one were freely and voluntarily given and not solicited by the respondent and other recipients.

            Indeed, the monetary gifts totalling $56,200.00 to the respondent Filipino caregiver were received from the daughter of resident number one in checks signed by her from the Paine Webber account, under the names of resident number one, his deceased wife, and his daughter who signed the checks.

            On the other hand, the Complainant’s/Department’s Closing Argument Brief stated that the respondent was “aware of the mental state of the victim (resident number one) and took advantage of his weaknesses and vulnerability to get money from the victim.”  It concluded that “(t)he Respondent had violated the personal rights of the victim.”

            The Department further stated that “(t)he file showed that the Respondent had completed the training for the Residential Elderly Administrator Certification Program and was certified as such.”  And it pointed out that “(t)he subject of the said program included discussion of the statues and regulations concerning older financial abuse and the requirements for reporting.

Factual Bases Of Proposed Decision

Of AL Judge Vincent Nafarrete:

            Based on his factual findings, Administrative Law Judge Vincent Nafarrete concluded on the first issue on violation of personal rights that:  “Respondent did not violate Client No. 1’s personal rights to be accorded dignity in his personal relationships with staff, residents, and other persons.  Respondent, in fact, provided excellent care to client No. 1 at the … facility and the client thrived under his care and that of the other caregivers.  Client No. 1 appreciated the care given to him and showed his appreciation by freely and willingly giving monetary gifts to the caregivers.”

            Judge Nafarrete further formed that:  “Client No. 1 was fully aware of his own actions and gave the monetary gifts due to his own generosity and a desire to help the caregivers.  Respondent did not engage in any conduct that diminished client No. 1’s dignity in his personal relationships.  The client was fully aware of his actions in giving monetary gifts to respondent and other caregivers and was in control of his funds.”

            On the second issue on inimical conduct, Judge Nafarrete concluded that:  “it was not established that respondent’s conduct in accepting $56,200.00 from a client in a residential care facility for the elderly where he worked as a caregiver constituted conduct inimical to the health, morals, welfare, or safety of individuals in or receiving services from a licensed community care facility or the people of the State of California.”

            Judge Nafarrete found that:  “Respondent did not solicit or exert any influence upon the client No. 1 to give him any money.  He states that he did not know that it was unlawful or wrong for him to accept monetary gifts from the elderly client whom he cared for in the residential care facility.”

Legal Conclusions Of

Proposed Decision:

            According to Judge Nafarrete, “the evidence did not demonstrate that respondent took, secreted, appropriated, or retained the elder client’s money for a wrongful use or with an intent to defraud.  Nor did the evidence show that the respondent acted in bad faith.”

            Indeed, he found that:  “Respondent received and accepted the money as gifts to be used for the expenses of his family, home, and medical education.  He did not take or retain the money and apply the money to a wrongful use or with the intent to defraud the elder.  As such, respondent did not commit financial abuse of an elder within the meaning of Welfare and Institutions Code Section 15610.30.

            Lastly, Judge Nafarrete correctly clarified that California Code of Regulations, Title 22, Section 87227, subd. (m), “requires a licensee to keep a record of monetary gifts from a resident.  The regulation does not prohibit an employee of a facility from accepting monetary gifts from a resident.”

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            (The Author, Roman P. Mosqueda, has represented numerous caregivers in validating monetary and real property gifts from elders in and out probate and civil courts.  But this is the first Exclusion Action brought by the Department of Social Services that he has defended.)