Pursuant to G.L.c.111, §72J and 42 USC 1396r (3)(2), and the Informal Rules of Adjudicatory Practice and Procedure, 801 CMR 1.02, et seq., the Petitioner, Department of Public Health-Division of Health Care Quality (DPH), issued a Notice of Right to Hearing to the Respondent, Paula DePina, a home health aide, to provide her with the opportunity to contest DPH's allegations against her of misappropriating her client's cash and credit cards while in the client's home performing housekeeping duties, and that this conduct should cause her name to be listed on the Nurse Aide Registry that will prohibit her from employment in any Massachusetts long-term care facility or home health agency in any capacity at any time in the future. (Ex. 1) The Respondent timely filed her request for hearing. (Ex. 3) The case was referred to the Division of Administrative Law Appeals for hearing. A pre-hearing conference was held May 1, 2009, and then a hearing was held June 19, 2009 and July 10, 2009, at the offices of DALA, 98 North Washington Street, 4th Floor, Boston, MA 02114.
Various documents are in evidence. (Exs. 1 - 10) Two (2) tapes were used. The Petitioner presented the testimony of: Christopher Jenkins, the owner and president of Home Instead, Inc. of Waltham, a franchise of Home Instead USA; Patricia Cronin, a Contracts Manager of Springwell, a nonprofit agency funded by state and federal funds to provide homemaker and personal care services and meals to the elderly by securing vendors to provide the services; and, Tricia J., daughter of the Respondent's clients, W.J and E.J. The Petitioner also called the Respondent as its witness. After the Petitioner had presented the testimony of all but Tricia J., Petitioner filed a Motion for Summary Decision. I denied this Motion. (Ex. A) Thereafter, Petitioner was allowed to present the testimony of Tricia J.(Ex. B) The Respondent was then allowed to testify again on rebuttal. The record closed following each side's oral arguments.
FINDINGS OF FACT
Based on the testimonial and documentary evidence presented, and the reasonable inferences drawn therefrom, I make the following findings of fact:
1. Springwell is a non-profit that receives grant funding from the federal government for meals and grant funding from the Commonwealth of Massachusetts to provide light housekeeping and/or personal care services to elderly state clients identified as qualifying for such services on a sliding scale fee arrangement. Springwell identifies vendors or providers of these services, and matches the client's needs with a particular vendor's or provider's home health aide employee. This is done through a Springwell Case Manager working with both the client and the potential vendor or provider. (Testimony)
2. Home Instead of Waltham is a franchise of USA Senior Care, Inc., a vendor of home health aide services for the elderly. Home Instead contracts with Springwell to provide services to Springwell's elderly clients. Paula DePina was an employee of Home Instead from about January 2007 when she was hired by Home Instead of West Roxbury. She worked part-time providing homemaker services. Home Instead of West Roxbury closed in about September 2007. She was re-hired in November 2007 by Home Instead of Newton which later relocated to Waltham. (Testimony)
3. Springwell identified two elderly clients in need of housekeeping services,
W.J., aged 81, and his wife, E.J., aged 84, all to be provided in one home. Springwell hired Home Instead of Waltham who offered these services to be performed by Ms. DePina. The housekeeping services included doing laundry, vacuuming, dishes, cleaning the bathrooms and the kitchen, mopping, light dusting, and changing beds. No personal care services were to be provided. No heavy chore work was provided. The funds to pay Ms. DePina came from Springwell. Because Springwell received federal and state grant funds, certain criteria had to be satisfied by the home health aide, Ms. DePina. (Exs. 6, 7 & 8. Testimony.)
4. Ms. DePina began work for W.J. and E.J, through her employment with Home Instead of Waltham starting in and around August 2008. She worked at the home of these clients, three (3) days a week, around 9:30 A.M. to 12:30 P.M. (Exs. 6, 7 & 8. Testimony.)
5. In connection with her employment as a home health aide for Home Instead, Ms. DePina was required to adhere to a particular code of conduct with the clients including as to handling their possessions. This written code was provided to Ms. DePina as it was to all Home Instead employees. She was required to sign-off that she had read and understood the code of conduct. Ms. DePina was aware of what the code required of her. The code of conduct included USA Senior Care, Inc.'s requirements along with specific conduct required in connection with servicing Massachusetts elderly clients. (Exs. 4 & 5. Testimony.)
6. The February 2008 version of USA Senior Care, Inc.'s employee policies for the workplace included the following general provisions under rules of conduct:
All employees are expected to conduct themselves and the business of this office with the highest integrity and to act responsibly and ethically on the job. All employees are asked to treat clients and coworkers in a courteous and helpful manner. If you have any doubt about suitable behavior, please confer with your supervisor.
Inappropriate personal conduct and/or failure to observe rules may subject the offender to verbal and/or written warnings, suspensions or discharge depending on the nature, frequency and severity of the offense and the employee's overall work record. The Company reserves the right to determine appropriate discipline for any inappropriate personal conduct.
(Ex. 4) The rules of conduct provided examples of serious misconduct that could lead to dismissal or discipline including the following:
Unauthorized possession, use, or loan of client property from client premises
without their express permission.
7. The additional rules of conduct that Ms. DePina signed-off on for Home Instead on November 16, 2007 included the following:
I am not allowed to handle client funds. Checks may be handled if the check is made payable to the store. (Ex. 5)
8. Ms. DePina understood that she could never take or borrow any money or property from her homecare clients. She felt this was also common sense not to do that. (Testimony)
9. W.J. and E.J. had become used to and trusted Ms. DePina working in their home by November 2008. One of their daughters, Tricia J., was residing with them during the time period Ms. DePina was providing housekeeping services to them. During October 2008, Tricia experienced a few occasions which made her suspect that Ms. DePina might be engaging in misappropriation of her parents' property and was too interested in their personal property. Tricia's mother had surgery in October 2008. She had a practice of keeping a small coin purse stuffed with change. Tricia noticed that this coin purse was missing many coins although neither she nor her parents had taken coins from the purse. Tricia suspected Ms. DePina took some of the change from the purse without permission. She did not ask Ms. DePina about that. Another occasion in October 2008, Tricia saw Ms. DePina bring out the trash to the garage where Tricia's car was parked. Tricia went to see what Ms. DePina was doing when she did not return after about five (5) minutes. She found Ms. DePina looking over Tricia's car. When Ms. DePina saw Tricia, she remarked that she liked Tricia's car and that she needed a new car. Tricia found this behavior to be "weird." Another occasion in October 2008, Tricia thought she saw Ms. DePina taking photographs of her parents' home. She could not imagine why she would be taking photographs of any of her parents' property or possessions. She did not talk to Ms. DePina about that. (Testimony)
9. There had been no complaints made to Home Instead or to the Springwell Case Manager about Ms. DePina by W.J., E.J., or by Tricia J. or by anyone else regarding her work for W.J. and E.J. by November 3, 2008. (Testimony)
10. During the morning of November 3, 2008, Tricia J. was in the home along with her parents and Ms. DePina. Ms. DePina was going to do a laundry for the clients. She took a hamper filled with clothes to wash. She was in the kitchen when she saw a pair of W.J.'s pants hanging over one of the chairs in the kitchen. She took the pants, intending to add them to the wash. She began to check the pockets to take out what was inside them to prepare the pants to be washed. She found a money clip with cash along with a group of credit cards held together with an elastic band. She began to count the bills in the money clip. There was at least $100. She then decided she would take a $20 bill without telling W.J. or anyone else. At and around the time she made that decision, she became aware of Tricia approaching her from the hallway off the kitchen. Ms. DePina took her jacket and put it over the hand that was holding the filled money clip and the credit cards. She took out her cell phone with the other hand and held it to her ear. Tricia approached her and asked her what she was doing. At that time, Tricia had not seen that Ms. DePina's hand was holding onto the money clip and credit cards, but she thought her conduct again seemed "weird." She became suspicious of Ms. DePina as she saw her with her jacket covering one arm and hand and the other hand holding onto her cell phone. (Testimony)
11. Ms. DePina said she was calling the office. At that time, Ms. DePina did not want Tricia J. to see or to know that she was holding W.J.'s money clip and credit cards. Tricia did not leave Ms. DePina's presence after hearing that answer as she continued to be suspicious about what Ms. DePina was doing. This made Ms. DePina very tense and she showed that tenseness to Tricia. At that point, Ms. DePina decided she would try to escape from Tricia. As Ms. DePina began to leave the kitchen to get away from Tricia, Tricia blocked her exit. Tricia also moved aside her jacket and then saw the items in Ms. DePina's hand. (Testimony)
12. Tricia J. confronted Ms. DePina, asking her what she was doing. Ms. DePina handed the filled money clip and credit cards to Tricia. E.J. was leaving the bathroom off the hallway near the kitchen. Tricia called for her to come. E.J. did. Tricia told her mother that Ms. DePina had W.J.'s wallet items in her hand, hidden by her jacket, and that she was trying to leave. Ms. DePina admitted to them that she had thought of taking $20. She asked that they not call the police. E.J. and Tricia told Ms. DePina this was terrible to do. E.J. told Ms. DePina that they had trusted her and how could she have done this. Ms. DePina was very nervous. She began to cry. E.J. told Ms. DePina that she could not work for them anymore and would have to leave. Tricia though, insisted that Ms. DePina at least apologize to W.J. Ms. DePina said she would. (Testimony)
13. W.J. was in the porch. Ms. DePina walked through the house to the porch along with Tricia J. and E.J. Once in the porch, Tricia explained that Ms. DePina had taken his wallet items including money and credit cards, and that Tricia had found them in Ms. DePina's hand once she removed the jacket covering her hand. The implication was that Ms. DePina was intending to steal from W.J. Once he understood the allegation, W.J. told Ms. DePina that this was terrible, and that she should have thought about her reputation. Ms. DePina was crying, said she was sorry, and that she only considered taking $20. In reaction to her apology, W.J. took out a $20 bill from his money clip and wrote his name on it and gave it to her telling her that he hoped she had learned a lesson in all this. Ms. DePina was feeling genuine remorse for her actions, and took the $20 bill. She said she would never do anything like this again. She has never spent that $20 bill. The police were not called. Tricia escorted Ms. DePina to the door and she left the house. (Testimony)
14. Bridget Maloney, the Springwell Case Manager for W.J. and E.J., received a call from Tricia J. about the incident with Ms. DePina. Tricia told her that she caught Ms. DePina trying to take her father, W.J.'s wallet with money and credit cards. Tricia told her she tried to hide the items by holding her jacket over the hand that was holding these items, and then trying to leave, but that Tricia grabbed the jacket away as she was suspicious, and saw the wallet items. Once caught, Tricia explained that her mother, E.J. was called to meet with Ms. DePina, and that later, they all went to meet with W.J. Tricia explained that the police were not called but that E.J., W.J., and herself, all told Ms. DePina that this was a very serious matter that could ruin her life. Tricia did explain to Ms. Maloney that Ms. DePina apologized before leaving the house. After Ms. Maloney reported this incident to her supervisors, the manager of the Home Instead of Waltham was contacted as is the Springwell protocol when such incidents are reported. (Testimony)
15. Patricia Cronin of Springwell, Ms. Maloney's manager, called and spoke with Christopher Jenkins, the president and owner of Home Instead of Waltham. She explained what Ms. Maloney had told her. Mr. Jenkins understood that the issue was that Ms. DePina had been caught trying to steal from her client; that the clients' daughter found her holding her father's wallet in her hand. Even though she had been caught and was not able to take the money or credit cards, Mr. Jenkins knew this was a very serious matter. He was able to reach Ms. Maloney by telephone who confirmed this incident. Mr. Jenkins tried to call the clients, W.J. and E.J., but without success. He called the Elder Abuse Hotline for help in learning what he had to do next to comply with regulations when such incident occurs. He learned that he had to report this incident to DPH. He received a fax report form to complete and file with DPH. Mr. Jenkins also reached Ms. DePina over the telephone. He confronted her with the incident as he understood it happened. Ms. DePina did not say very much but did say she was resigning her job with Home Instead. Ms. DePina felt she had no other course to take. Mr. Jenkins wrote a memorandum about this course of events. He completed the fax report form. He faxed that form and his memorandum on November 6, 2008 to DPH. (Exs. 9 & 10. Testimony.)
16. In his memorandum of November 6, 2008 to DPH, Mr. Jenkins explained what he understood happened the morning of November 3, 2008 at the home of W.J. and E.J. He also included Ms. DePina's reaction to being confronted by him with this incident:
On November 3 in the morning the daughter Trisha J. (sic) went into her parents' kitchen and saw our employee sitting at the kitchen table on the phone. She appeared to be trying to hide something under a coat. Trisha locked the kitchen door and grabbed at the coat. Hidden under the coat in Paula's hand was her Dad's wallet which contained cash and credit cards. When confronted Paula admitted she had planned on removing cash from the wallet and then returning it. Trisha J. (sic) called her two sisters and then as a group talked to Paula at length about the potential impact such an action would have on her life. They instructed Paula to apologize to their Dad.
Paula confirmed the basic elements of the above to me in a phone call on November 3 adding that she intended to return the wallet and that the family had said they did not plan to press charges.(Ex. 10)
17. DPH began an investigation of the incident on November 10, 2008. The DPH surveyor/investigator spoke to Tricia J. and E.J. W.J. passed away on November 7, 2008. The surveyor/investigator also spoke to Mr. Jenkins and to Ms. DePina. Tricia J. reported that on November 3, 2008 her father, W.J., had in his pant pocket, his wallet with his gold money clip with an unknown amount of money and some credit cards and business cards. She explained that he had left these pants in the kitchen as he wore shorts that day. Tricia reported that she walked into the kitchen and found Ms. DePina acting suspiciously with her jacket held over one of her hands, and that Ms. DePina told her she had to call her agency as she held her phone in her other hand. Tricia reported that she ended up not letting Ms. DePina walk away from the kitchen and removed her jacket to expose her hand underneath. Tricia reported she saw the wallet items in Ms. DePina's hand, and asked Ms. DePina what she was doing. Tricia reported that Ms. DePina explained that she was only going to take $20 and return the rest of the cash and other items, and asked her not to call the police. Tricia reported that she told W.J. and E.J. what happened while Ms. DePina was still in the house, that Ms. DePina apologized, and that W.J. and E.J. both explained to Ms. DePina how they had trusted her and were very upset. She reported neither wanted Ms. DePina to come back again. E.J. confirmed this account to the surveyor/investigator. Mr. Jenkins explained to the surveyor/investigator that he learned about the incident and then spoke to Ms. DePina who admitted being caught with W.J.'s wallet items and resigned from her job. The surveyor/investigator concluded that the allegation of misappropriation was valid. (Ex. 2. Testimony.)
18. On November 20, 2008, DPH issued a Notice of Right of Hearing to Ms. DePina to allow her to contest the determination made by the surveyor/investigator that the allegation of misappropriation against her was valid. She was provided with a copy of the investigation report. She was provided with the legal basis for the DPH being able to seek to place her name on the Nurse Aide Registry to prevent her from again working in a Massachusetts long-term care facility or for a home health agency "at any time in the future" due to this incident. Ms. DePina timely filed her request for a hearing on this matter. (Exs. 1, 2 & 3.)
19. In her request for hearing dated December 4, 2008, Ms. DePina explained:
I was getting ready to do the laundry … In the kitchen there was a pair of pants, so I went through the pockets and found a money clip with money and credit cards. I only looked through it and started to count the money … about 100 dollars, when their daughter walked in. I was not going to take all the money, … I did think about taking 20 dollars but didn't. It was a big mistake just going through the money and I'm very sorry for what I did. I also apologized to the family repeatedly, ….(Ex. 3)
Based on my assessment of the documentary and testimonial evidence, and in particular, the credibility of Tricia J. in explaining the incident, I conclude that DPH has shown that Ms. DePina misappropriated the credit cards and money clip containing at least $100 of her client, W.J., on November 3, 2008. Although Tricia J. caught Ms. DePina before she could take even the $20 bill she fully intended to take, I do not find that this course of events means she can escape the reach of 501 CMR 155.003 as to a home health aide and the standard for misappropriation. Ms. DePina tried to hide the money clip and credit cards from Tricia's view and to leave with them undetected. Only because Tricia removed the jacket covering her hand holding the money clip and credit cards was Ms. DePina unable to carry out the plan to take W.J.'s property/money without his approval or knowledge. The record shows no one else had given her permission to take any money from W.J. or from anyone else in the household.
Ms. DePina admitted some degree of wrongdoing, but even as her letter requesting the hearing shows, she was not fully admitting to misappropriating money or property, just that she considered doing that and did not. She only was remorseful for even considering taking $20 from the money clip, not that she did take it even if for only the short time period before Tricia J. stopped her from leaving the house with the money and credit cards. This is why it was important to hear from Tricia. She never heard the testimony given by Ms. DePina or the testimony of Mr. Jenkins or Ms. Cronin before she testified on the second day of hearing after they had all testified. This helped me in determining the credibility of her account of what happened. I found her account was in agreement with the account she later provided to the DPH surveyor/investigator. What was interesting is that prior to the incident on November 3, 2008, Tricia had suspicions about Ms. DePina's conduct inside the home including a suspicion that she had taken coins out of her mother E.J.'s coin purse sometime in October 2008. She was also suspicious about Ms. DePina based on her understanding that she took photographs of the home and that she spent time looking over Tricia's car in the garage. This pre-existing suspicion about Ms. DePina makes her account of blocking Ms. DePina from leaving the kitchen and then grabbing away the jacket to see what was in her hand under the jacket, very believable conduct on her part. Absolutely no evidence shows Tricia was trying to entrap Ms. DePina and exaggerated what she encountered on November 3, 2008.
Ms. DePina's account of the incident did not vary all that much from Tricia J.'s account other than the key moments at the time the two women were together in the kitchen. Ms. DePina tried to minimize her actual intention to take the money and credit cards; that she was only considering taking $20 when Tricia interrupted her, and that she put the jacket over the money and credit cards so that she could escape Tricia learning what she had considered doing to be able to then put the money clip and credit cards back into W.J.'s pants. I do not find Ms. DePina's account to be totally honest. In contrast, Tricia.'s very credible account showed that Ms. DePina had the time, the intention and the plan to misappropriate the property of W.J. Her account shows that Ms. DePina would have been able to leave with the money and credit cards but for Tricia grabbing away the jacket to reveal the property in Ms. DePina's hand.
Ms. DePina's account is that she was crying, remorseful and very sorry to W.J.
and E.J. for even considering taking the $20 bill. I believe her that she was remorseful and that she has not spent the $20 bill W.J. gave her as a lesson to her. Clearly, W.J. and E.J. wanted to give Ms. DePina a chance to straighten out her life and never again wrongfully take the property of another. They even decided not to call the police for that reason. But, the testimony of Tricia confirms that her parents fully appreciated that but for Tricia catching Ms. DePina in the act of taking the money and credit cards, Ms. DePina would have left with at least $20 of W.J.'s money. Tricia's account shows that W.J. and E.J. were not just believing Ms. DePina had considered taking money from W.J., but that she was caught in the act of actually taking the money and credit cards.
105 CMR 155.003 defines misappropriation as "the deliberate misplacement, exploitation, or wrongful temporary or permanent use of a patient's or resident's belongings or money without such patient's or resident's consent." What the record shows is that Ms. DePina had the full intent to misappropriate money from W.J. She tried to hide the filled money clip and credit cards, and to leave the presence of Tricia J. in order to take at least $20 without anyone in the household realizing it and with no permission or authority to do so. She admitted that to actually take possession of money from a client without permission or acknowledgement by the client and to intend to use the money for her own benefit is an act she acknowledges a home health aide is not allowed to do, even if at some time soon thereafter, the taken money is returned. She knew doing that was against her employer's policies and rules of conduct. She knew this was wrong to do as a matter of common sense. This is why she has violated 105 CMR 155.003. She had the full intent to misappropriate and did misappropriate property of W.J. even if only for a temporary time period before being caught by Tricia.
For these reasons, I find that Ms. DePina misappropriated W.J.'s property, and this finding supports the proposed action of the Dept. of Public Health to enter her name on the Nurse Aide Registry.
DIVISION OF ADMINISTRATIVE
Sarah H. Luick, Esq.
DATED: September 24, 2009