IN THE MATTER OF PATRICIA MILLER, RESPONDENT, v. BARBARA A. DEBUONO, &C., ET
AL., APPELLANTS.
90 N.Y.2d 783, 689 N.E.2d 518, 666 N.Y.S.2d 548 (1997).
December 4, 1997
2 No. 219
(97 NY Int. 0216)
Decided December 4, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Barbara K. Hathaway, for appellants.
Karen Honeycutt, for respondent.
LEVINE, J.:
On November 7, 1991, the New York State Commissioner of Health
received a report that petitioner Patricia Miller, a certified nurse
aide employed at the Green Park Care Center in Brooklyn, had abused a
patient in her care. Specifically, the report alleged that petitioner
had "hit (a) patient in her righteye causing her to sustain a bruise."
Following an investigation, the Commissioner decided that sufficient
credible evidence existed to support the allegation of patient abuse
and, on March 20, 1992, issued a written determination to that effect.
Petitioner subsequently was notified of that determination and
informed that she had the right to contest the accuracy of the
findings and request an administrative fair hearing. Petitioner also
was advised that unless the written determination was expunged, the
finding of abuse would be forwarded to the agency responsible for
maintaining the New York State Nursing Home Nurse Aide Registry, and
made available for public disclosure after issuance of the
Commissioner's final order.
Pursuant to Public Health Law § 2803 d(6)(d), petitioner requested
a fair hearing, challenging the Commissioner's written determination.
At the conclusion of the hearing, at which the patient and petitioner
both testified, the Administrative Law Judge (ALJ) recommended that
the Commissioner's written determination of patient abuse be annulled
and the record expunged. In finding that the determination was "not
supported by the evidence," the ALJ noted that, although petitioner's
hand may have come in contact with the patient's eye, there was no
SNIPPETS:
Barbara K. Hathaway, for appellants.
On November 7, 1991, the New York State Commissioner of Health received a report that
the report alleged that petitioner had "hit patient in her righteye causing her to sustain a
Following an investigation, the Commissioner decided that sufficient credible evidence
Petitioner subsequently was notified of that determination and informed that she had the
Petitioner also was advised that unless the written determination was expunged, the finding
Thereafter, as mandated by 10 NYCRR 415.4, the Green Park Care Center terminated petitioner's
Petitioner then instituted this hybrid CPLR article 78 proceeding and declaratory judgment
In addition, petitioner challenged the Commissioner's written determination as an abuse of
Public Health Law § 2803 d requires administrators, physicians and health care professionals,
At the fair hearing, the burden of proof is on the Department of Health ) and, as the statute
We agree with the position of respondents, on their appeal, that the Appellate Division erred
We held in Forti that where the requirements for engaging in specified professional activity
Having determined that the regulation was not retroactively applied, we must address
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