                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 95-CT-00908-SCT
JUANITA RICKS
v.
MISSISSIPPI STATE DEPARTMENT OF HEALTH
                          ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                               08/02/95
TRIAL JUDGE:                                    HON. EDWARD C. PRISOCK
COURT FROM WHICH APPEALED:                      NESHOBA COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                         ROGERS J. DRUHET, III
ATTORNEY FOR APPELLEE:                          LAURA HOGAN TEDDER
NATURE OF THE CASE:                             CIVIL - STATE BOARDS AND AGENCIES

                                                (OTHER THAN WORKERS' COMPENSATION)
DISPOSITION:                                    REVERSED AND RENDERED - 8/13/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 9/3/98




     EN BANC.


     WALLER, JUSTICE, FOR THE COURT:


                                             Introduction

¶1. This matter is before the Court sitting en banc on the petition for writ of certiorari filed by the
Mississippi Department of Health, requesting review of the Court of Appeals' decision which
reversed and rendered the decision of the Chancery Court of Neshoba County affirming the
Mississippi Department of Health's determination that Juanita Ricks' name should be placed on the
Nurse's Aide Abuse Registry. The issues raised for review are whether or not the Court of Appeals
applied the proper standard of review, and whether or not the Court of Appeals can substitute its
own definition of "neglect" for that used by the administering agency, the Mississippi State
Department of Health. We conclude that the Court of Appeals did not apply the correct standard of
review, and erred in not according deference to the definition of the statute used by the agency
chosen to administer it, since the agency's interpretation of the statute was in accordance with the
plain meaning thereof.

                                        Statement of the Case
¶2. The State Department of Health conducted a hearing pursuant to the Mississippi Vulnerable
Adults Act, Miss. Code Ann. § 43-47-3 et seq. (1993), and determined that Juanita Ricks' name
should be placed on the Nurse's Aide Abuse Registry due to the fact that Ricks left Ms. Woodward,
an eighty-three year old resident of a nursing home, unrestrained and unattended on a portable toilet
room commode, which resulted in a fall and serious injuries to Ms. Woodward. Ricks appealed to the
Chancery Court of Neshoba County, which affirmed the State Department of Health. Ricks then
appealed to the Court of Appeals, which reversed and rendered based on its determination that
although the statutory definition of negligence does not include the word "willful," wilfulness is
implied, i.e., negligence must be willful. This inference is in contravention to the interpretation given
to the statute by the administering agency, the State Department of Health, and in contravention to
the plain meaning on the face of the statute. As the Department of Health notes, this issue is
specifically addressed in the Federal Register which states in pertinent part:(1)

     Comment:

     Several commentators thought the proposed definition of "neglect" was too broad and
     ambiguous. They contend it is necessary to narrow the definition in order not to inundate the
     system with complaints. Some commentators requested that the terms "willful" and "intent"
     be inserted into the definition to limit the scope of actions that could be considered neglect.

     Response:

     In order to promote consistency in the survey process, there needs to be a common definition of
     neglect for a variety of applications. We have, therefore adopted the concept of the definition
     used in the Older Americans Act, as we explain below. That definition does not incorporate the
     terms "willful" or "intent." While an act of neglect can be intentional, neglect can also
     occur unintentionally. However, we are specifying at § 488.335(e) that a State must not make
     a finding that an individual has neglected a resident if the individual demonstrates that such
     neglect was caused by factors beyond his or her control. If the inattentiveness is due to factors
     within that persons control, intentional or unintentional, he or she can be considered to
     have neglected the resident(s). Therefore, while willfulness and intent may be considered
     when a State finds that an individual has neglected a resident, we believe the terms
     "willful" or "intent" should not be included in the definition because neglect can occurr
     unintentionally.

     ....

     Comment:

     Other commentators suggested their own State definitions of neglect should suffice in order not
     to confuse facilities with separate definitions.

     Response:

     As noted earlier, there has been no evidence to suggest that any State definition is preferable to
     ours. In fact, we believe allowing each State definition to stand, as is, would increase
     confusion among the providers and promote inconsistency from State to State.
59 Fed. Reg. 56, 120 (1994)(emphasis added).

¶3. The Court of Appeals apparently was unaware of the dialogue contained in the Federal Register
and failed to consider the hearings held in conjunction with this matter pursuant to the meaning of the
term "neglect."

                                                Facts(2)

¶4. On June 14, 1993, Ms. Woodward, an extremely fragile 83 year old women fell from a portable
toilet in her room in the Neshoba County Nursing Home, and suffered serious injuries as a result of
her fall, including fractures to her nasal bone, cheek bone, and to one of her feet. Ms. Woodward is
confined to bed, and requires the assistance of one or two people to get her up. It was documented in
facility records that she needed restraints at all times when she was up because of her tendency to fall,
and two people were required to attend Ms. Woodward when she had to be removed from her bed.
She cannot sit up in a chair without being restrained or having some type of mechanical device. Her
fall was first categorized as an accident by the Director of the Neshoba County Nursing Home.

¶5. However, the cause of Ms. Woodward's fall was reconsidered nine days later when the
daughter(3) of Ms. Woodward's roommate came forward and reported to nursing home officials that
Juanita Ricks, a nurse's aide in charge of Ms. Woodward, had left the room when Ms. Woodward,
unrestrained and unattended, fell from a portable toilet.(4) Only when Ms. Tingle came forward was
this incident reported to Department of Health Officials. Ann Ricks, a registered nurse with eight
years of experience was then appointed to investigate the report of possible neglect in accordance
with department regulations, and a hearing was held on October 15, 1993, to determine if Juanita
Ricks had neglected Ms. Woodward in violation of Departmental Regulations.

¶6. At the hearing, Ann Ricks, R.N., unrelated to Juanita Ricks, testified as to what Ms. Tingle had
reported to her. Ms. Tingle reported that on the day in question, Juanita Ricks left Ms. Woodward's
room with Ms. Woodward sitting unrestrained on a portable toilet. While Juanita Ricks was gone
from the room, Ms. Woodward fell from the toilet and suffered serious injuries. Ms. Tingle was
present in the room at the time of the incident and was visiting with her mother, who was Ms.
Woodward's roommate.

¶7. During the course of her investigation, Ann Ricks took a statement from Juanita Ricks. Ricks
stated that she did not leave the room, although she did turn her back on Ms. Woodward and moved
a few feet away from her for a moment while she was getting the towel. It is undisputed that Ms.
Woodward was not restrained when sitting upon the toilet and that Juanita Ricks was at best, a few
feet away from her with her back turned, when Ms. Woodward fell.

¶8. Confronted with the conflicting testimony recited above, the investigator for the Mississippi State
Department of Health concluded that she could not determine which of the parties (Juanita Ricks or
Ms. Tingle) was telling the truth. However, based upon her training and experience, the investigator,
Ann Ricks, R. N., unrelated to Juanita Ricks, testified and was of the opinion that under either set of
circumstances, Juanita Ricks was guilty of neglect as defined in the department regulations. The basis
for the investigator's opinion was that Ms. Woodward was very fragile and prone to fall. She was to
be restrained at all times when she was not in her bed. She should have been attended while seated on
the portable toilet. At a very minimum, she should have been restrained on the toilet if left
unattended. The investigator also testified that according to the nursing home records, two people
were to attend Ms. Woodward when she had to be moved from her bed.

¶9. Juanita Ricks testified at the hearing and was given an opportunity to cross-examine Ann Ricks.
She maintained, contrary to the statement of Ms. Woodward's roommate and the daughter of the
roommate, Ms. Tingle, who were present when this incident occurred, that she had never left Ms.
Woodward's room nor was she ever informed that Ms. Woodward was to be restrained while seated
on the portable toilet. She further maintained that while she had attended a program for nurse's aides
on the subject of abuse and neglect, she had never been informed of the type of neglect for which she
was being held accountable. She also presented other witnesses and a petition supporting her
position, signed by numerous third parties.

I. Petitioner, the Mississippi Department of Health, asserts that the standard of review used by
the Court of Appeals is incorrect and that further, the Court of Appeals "created" a definition
of neglect for the basis of its opinion which differs from that used by the department, and
which differs from the plain and clear language of the statute, as well as from the definition of
neglect as explained in the Federal Register.(5)

Standard of Review

¶10. An appellate court's review of a decision of an administrative agency of the State is well
established. See Mississippi State Bd. of Nursing v. Wilson, 624 So. 2d 485, 489 (Miss. 1993);
Mississippi State Tax Comm'n v. Vicksburg Terminal, Inc., 592 So. 2d 959, 961 (Miss. 1991);
Mississippi State Tax Comm'n v. Mississippi-Alabama State Fair, 222 So. 2d 664 (Miss. 1969). This
Court has held:

     Our Constitution does not permit the judiciary of this state to retry de novo matters on appeal
     from administrative agencies. Our courts are not permitted to make administrative decisions and
     perform the functions of an administrative agency. Administrative agencies must perform the
     functions required of them by law. When an administrative agency has performed its function,
     and has made the determination and entered the order required of it, the parties may then appeal
     to the judicial tribunal designated to hear the appeal. The appeal is a limited one, however,
     since the courts cannot enter the field of the administrative agency. The court will entertain
     the appeal to determine whether or not the order of the administrative agency (1) was
     supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power
     of the administrative agency to make, or (4) violated some statutory or constitutional right
     of the complaining party. This rule has been thoroughly settled in this State.

Mississippi State Bd. of Nursing v. Wilson, 624 So. 2d at 489 (quoting Mississippi-Alabama State
Fair, 222 So. 2d at 665) (emphasis in original).

¶11. "`Moreover, there is a rebutable presumption in favor of the action of an administrative agency
and the burden of proof is upon one challenging its action.'" Wilson, 624 So. 2d at 489 (quoting
County Bd. of Educ. of Alcorn County v. Parents & Custodians of Students at Rienzi Sch.
Attendance Ctr., 251 Miss. 195, 205, 168 So. 2d 814, 818 (1964)). Additionally, this Court is bound
"`...to give due deference to the factual findings of the administrative agency and to the chancellor
who adopted the same findings.'" Wilson, 624 So. 2d at 490 (quoting State Farm Ins. Co. v. Gay,
526 So. 2d 534, 535 (Miss. 1988)).

The Board's decision

¶12. The State Board of Health made a decision, based upon hearing all the evidence, to strike
Juanita Ricks from the regulatory "Nurse's Aide Roster" because of her neglect of Ms. Woodward, a
nursing home patient under Juanita Ricks' care and supervision.

¶13. The Department of Health found Ricks guilty of "neglect" as defined in Section 43-47-5(k) of
the Mississippi Code and defined in the Mississippi State Department of Health Regulations. This
State adopted the Mississippi Vulnerable Adults Act in 1986. See Miss. Code Ann. § 43-47-3 et seq.
(1993). The Mississippi State Department of Health was given authority to enact regulations and
standards of conduct for nurses and nurses's aides pursuant to § 41-3-17(1993). The term "neglect" is
defined in the Mississippi Vulnerable Adults Act as follows:

     "Neglect" shall mean either the inability of a vulnerable adult who is living alone to provide for
     himself the food, clothing, shelter, health care or other services which are necessary to maintain
     his mental and physical health, or failure of a caretaker to supply the vulnerable adult with
     the food, clothing, shelter, health care, supervision or other services which are necessary to
     maintain his mental and physical health.

Miss. Code Ann. § 43-47-5(k) (1993)(emphasis added).

¶14. Section I (h) of the Mississippi State Department of Health's Regulations Related to the
Removal of Nurse's Aides from the Registry defines "neglect" as follows:

     "Neglect" shall mean the failure to supply the long term care resident with the care, food,
     clothing, shelter, health care, supervision or other services which are necessary to maintain his
     mental and physical health.

The pertinent regulation goes on to say:

     [A]ny aide that has been found by the licensing agency to have abused, neglected, or
     misappropriated the property of a long term care resident in his or her care, shall be stricken
     from the Nurse's Aide Roster. Only the Licensing Agency may strike an aide from the roster
     due to abuse, neglect, or misappropriation.

See Regulations Related to the Removal of Nurse's Aide from the Registry, Mississippi Department
of Health, § I (h) (effective December 11, 1990) (emphasis added).

¶15. As previously noted, supra, the definition, pursuant to hearings held by the federal government
on the pertinent regulations, does not include the word willful.

     That definition does not incorporate the terms "willful" or "intent." While an act of neglect
     can be intentional, neglect can also occur unintentionally. . . . If the inattentiveness is due
     to factors within that person's control, intentional or unintentional, he or she can be
     considered to have neglected the resident(s). . . . the terms "willful" or "intent" should
     not be included in the definition because neglect can occur unintentionally.
59 Fed. Reg. 56130 (1994)(emphasis added).

¶16. Yet, the Court of Appeals held:

     . . . There was no evidence of wilful conduct. . . . The offense requires wilful conduct, which is
     exactly what the definition even of neglect also contemplates.

¶17. Without authority cited in support of its decision, the Court of Appeals decided that the statute
in issue requires wilful neglect, and a pattern of neglect, when in fact, the statute is interpreted by
federal regulations and the health department according to its plain meaning, which is that neglect
may be wilful or unintentional. As long as a resident under an aide's supervision is injured through the
aide's neglect, or lack of supervision, intentional or not, that aide is guilty of neglect, and subject to
removal, by the health department, from the active register and transfer to the Nurse's Aide Abuse
Registry.

¶18. Furthermore, there is no doubt that Ms. Woodward was a "vulnerable adult" as defined by the
statute, nor is there any doubt that she was a "long term care resident" at the Neshoba County
Nursing Home as defined by the pertinent regulations. According to the nursing home records, Ms.
Woodward was confined to her bed and required the assistance of two other persons to get out of
bed, since she was prone to fall if left unassisted. Moreover, there is no claim that the pertinent
Department of Health Regulations exceed the authority granted by the enabling statute. This case
involves a straightforward violation of Section I(h) of the Regulations Relating to the Removal of
Nurse's Aide from the Registry by the Mississippi Department of Health, pursuant to the decision of
its hearing officer. The evidence and investigation shows that Juanita Ricks left Ms. Woodward
sitting on a portable room toilet unrestrained and unassisted, which resulted in a fall and serious
injuries to Ms. Woodward. This behavior clearly constitutes neglect under the pertinent definition of
neglect. Further, there were two witnesses to this behavior, Ms. Woodward's roommate, and the
daughter of the roommate, neither of which were in any position to lend assistance to Ms.
Woodward, nor was it their responsibility to lend aid to Ms. Woodward.

¶19. The standard of review accorded to administrative agency decisions has not been correctly
applied. The Court of Appeals majority apparently viewed the issue of this case as an interpretation
of law, and held that: "The point was not raised by either party, but we reverse and render because
we find that the statute does not permit the listing of a nurse's aide on the Abuse Registry because of
mere negligence." However, this Court has held that unless the Department's interpretation is
repugnant to the plain meaning thereof, the court is to defer to the agency's interpretation.
Mississippi State Tax Comm'n v. Lady Forest Farms, Inc., 701 So. 2d 294, 296 (Miss. 1997). See
also Kerr-McGee Chem. Corp. v. Buelow, 670 So. 2d 12, 16 (Miss. 1995); Tower Loan of
Mississippi v. Mississippi State Tax Comm'n, 662 So. 2d 1077 (Miss. 1995); Mississippi State Tax
Comm'n v. Dyer Inv. Co., 507 So. 2d 1287, 1289 (Miss. 1987).

¶20. Further, the interpretation given the statute by the agency chosen to administer it should be
accorded deference. Williams v. Puckett, 624 So. 2d 496, 499 (Miss. 1993); Gill v. Mississippi Dep't
of Wildlife Conservation, 574 So. 2d 586, 593 (Miss. 1990).

¶21. The definition of neglect is the failure "to supply the vulnerable adult with the... supervision...
necessary to maintain [her] mental and physical health." Miss. Code Ann. § 43-47-5(k)(1993). Juanita
Ricks' actions clearly led to the patient's fall and injury from "inattentiveness within the CNA's
control." Based upon the clear intent of the federal drafters, and the clear language of the statute, as
well as the administering agencies interpretation of the statute and the term "neglect," the Court of
Appeals erroneously reversed the decision of the chancellor.

Issues Raised on Appeal by Juanita Ricks and Not Addressed by the Court of Appeals:

I. Was the finding of the hearing officer that Ricks committed neglect arbitrary and
capricious?

¶22. "Our standard of review requires that we look to see whether the decision of the Board is
supported by substantial evidence, was arbitrary or capricious, was beyond the power of the
administrative agency to make, or violated some statutory or constitutional right of the complaining
party." United Cement Co. v. Safe Air for the Env't, Inc ., 558 So. 2d 840, 842 (Miss. 1990).

¶23. As discussed, supra, the evidence clearly establishes that the resident, Ms. Woodward was a
frail, elderly patient who could not sit up without someone physically supporting her or without some
sort of medical restraint. Juanita Ricks' employment record showed that she had been instructed on
previous occasions to get help with patients who needed constant physical support and restraint, yet,
Juanita Ricks left Ms. Woodward sitting on a portable room toilet unattended and unrestrained,
which resulted in a fall and serious injury. The findings of the Hearing Officer were therefore not
arbitrary and capricious, and were supported by the manifest weight of the evidence. This issue is
without merit.

II. Did the agency's failure to comply with the reporting requirements of the Vulnerable
Adults Act deprive the agency of authority to place Ricks' name on the Nurse's Aide Abuse
Registry?

¶24. Ricks claims that the State Department of Health had to refer this matter to the District Attorney
for prosecution. The State replies that a valid regulation providing for hearings on accusations of
abuse by certified nurse aides was in effect at the time of the incident and was controlling at the time
of the hearing. Therefore, the agency was not required to present reported abuse to the district
attorney for criminal prosecution. Ricks mistakenly refers to a regulation that did not become
effective until May 14, 1994. The old regulation was in effect on October 15, 1993, which was the
date of the hearing. This issue is without merit.

III. Did the hearing officer deny Juanita Ricks the opportunity for a fair hearing by limiting
cumulative testimony?

¶25. Ricks complains that she was not afforded the opportunity for a hearing, in that the hearing was
limited to 45 minutes. The Health Department responds that Ricks did not raise this issue at the
hearings or during appeal to the lower court, and is procedurally barred from raising it for the first
time upon appeal to this Court. Ponder v. State, 335 So. 2d 885, 886 (Miss. 1976). Further, Ricks
does not assert that there is any piece of evidence which she was not allowed to present which would
have affected the outcome of the hearing, and therefore, she has not shown that she was prejudiced
by any actions taken by the hearing officer. In fact, at the close of the hearing, the Hearing Officer
asked Ricks if there was any additional evidence she wished to present, to which she replied, "That's
it." This issue is without merit.

IV. Did the Agency comply with the requirements of the Administrative Procedures Act?

¶26. The Mississippi Vulnerable Adults Act of 1986, Miss. Code Ann. § 43-47-3 et seq.(1993),
designates the Mississippi State Department of Health and the Medicaid Fraud Unit as the agencies
to which abuse of vulnerable adults must be reported. The agency Administrative Hearing is held
pursuant to Federal Regulations contained at Vol. 56, No. 187, of the Federal Register, September
26, 1991. Due process in an administrative setting requires notice and a meaningful opportunity to be
heard, both of which were afforded to Juanita Ricks. Ricks availed herself of every appeal and was
never denied an opportunity to be heard. There is no evidence that the Mississippi Department of
Health deviated in any fashion from any of the requirements in this matter. This issue is without
merit.

                                              Conclusion

¶27. Because the Court of Appeals did not adhere to the proper standard of review, and further, on
its own initiative, found that neglect must be wilful or intentional, in clear contradiction to the plain
language of the statute, the interpretation of the statute used by the administering agency, and the
interpretation placed upon the pertinent statute in the Federal Register, the decision of the Chancery
Court of Neshoba County is affirmed, and the decision of the Court of Appeals is reversed and
rendered.

¶28. REVERSED AND RENDERED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
MILLS, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.




1. The laws and regulations in question for the State of Mississippi were mandated and developed by
the United States government as requirements to be met in order for nursing homes to participate in
medicare/medicaid programs. These statutes and regulations did not come about without hearings
and review by numerous governmental agencies, the United States Congress, interested parties and
the fifty states. These hearings and regulations resulted from the Omnibus Budget Reconciliation Act
of 1987 (as amended), and rules promulgated by the United States Department of Health and Human
Services, Health Care Financing Administration. Afterward, our Legislature and Department of
Health developed this State's statutes and regulations based upon the federal guidelines.

2. The facts recited here are taken from the record and from the dissenting opinion of the Court of
Appeals written by Judge Herring and joined by Chief Judge Bridges.

3. Identified as Ms. Tingle in the record.

4. Juanita Ricks, age unknown, had, according to the brief of the appellant, worked as a nurse's aide
at the Neshoba County Nursing Home for twenty years. The record does not show if Juanita Ricks
worked at another facility prior to her employment with the Neshoba County Nursing Home.
5. Much of the analysis used is taken from Judge Herring's dissenting opinion, joined by Chief Judge
Bridges.
