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August 11, 1992


On Petition for Review of a Decision of the Department of Consumer and Regulatory Affairs.

Before Steadman and Sullivan, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Saundra Baugh, a long-time resident of D.C. Village, was moved from an intermediate care unit at D.C. Village to a hospital because of an elevated temperature. Twelve days later, she was discharged from the hospital and returned to a skilled care unit at D.C. Village. The principal question before us is whether, and the extent to which, these hospital moves implicated the Nursing Home and Community Residence Facility Residents' Protection Act of 1985, D.C. Code §§ 32-1401 et seq. (1988 Repl.). *fn1

Under the Act, a "facility" *fn2 may not, without the consent of the resident, "discharge the resident, transfer the resident to another facility, or relocate the resident from 1 part or room of the facility to another" except for certain specified reasons. *fn3 D.C. Code § 32-1431(a). A resident must be given advance notice of any such planned move, and has the right to a prompt hearing if the resident wishes to contest the move. D.C. Code §§ 1432-33. In accordance with her asserted rights under these sections, Baugh filed a hearing request challenging her moves to and from the hospital. No such hearing was ever held. Rather, after protracted jurisdictional and related proceedings, a senior administrative law Judge of the Department of Consumer and Regulatory Affairs ("DCRA") ruled that the Act did not encompass the challenged moves and therefore Ms. Baugh had no right to a hearing. *fn4

It is, of course, settled in our jurisprudence that an agency's interpretation of a statute that it administers should be upheld unless it is "plainly erroneous or inconsistent with the enabling statute." *fn5 Jones v. Dept. of Employment Services, 553 A.2d 645, 647 (D.C. 1989) (citation omitted). Furthermore, we are mindful of the settled maxim that "if the words are clear and unambiguous, we must give effect to the [statute's] plain meaning." James Parreco & Son v. District of Columbia Rental Housing Comm'n, 567 A.2d 43, 45 (D.C. 1989). Applying these principles, we think the agency was justified in its ruling that neither the move from the nursing home to the hospital nor the move from the hospital to the nursing home, each standing alone, was subject to the Act. The Act only applies to a transfer to another "facility" or a relocation of a resident within a "facility." And a "facility" is a defined term which "means a nursing home or community resident facility operating in the District." D.C. Code § 32-1401(6). A "nursing home" and a "community resident facility" are in turn defined terms in a section which separately defines a "hospital." D.C. Code §§ 32-1301(a)(1), -1401(3), -1401(8). Likewise, we think the agency reasonably interpreted the word "discharge" as not encompassing a short-term, temporary transfer of a resident to a hospital for medical care with every expectation of a prompt return to the facility, at least where the stay was less than fifteen days, as here. *fn6

An open question remains whether the Act may apply to a situation where, as here, the resident is transferred to a hospital on a temporary basis but upon her return is placed in a different "part or room" of the facility. The Act would clearly apply to a direct "relocation" of a resident from an intermediate care unit to a skilled care unit within D.C. Village, and the issue is whether the moves to and from the hospital, taken together, amount to the same thing for purposes of the Act.

We do not perceive that this particular issue was squarely presented to or dealt with by the agency, which rather appears to have focused principally on the claim that the moves to and from the hospital were each subject to the Act. *fn7 Indeed, to the extent that the agency dealt with the changed level of care within D.C. Village, it said that the move "would appear to reflect good nursing practice and a medical judgment rather than an attempt to punish or penalize Petitioner," something that more normally would be determined after a factual hearing. While under ordinary circumstances, we might remand to the agency for a fuller exposition of the issue, we see no point in doing so in this case. The incident in question occurred over four years ago, and subsequent events have passed it by. *fn8 Both parties indicated at oral argument that this entire area is one in which significant changes are occurring both in administrative practice and in the governing and superseding federal law and regulations. Accordingly, we leave the issue for another day, with a fuller record both factual and legal, and affirm the order appealed from only within the limits discussed in this opinion.

So ordered.

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