                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          March 5, 2019



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    MAGDALENE PAL,                                                   No. 50660-2-II

                         Appellant,

          v.

    STATE OF WASHINGTON, DEPARTMENT                           UNPUBLISHED OPINION
    OF SOCIAL AND HEALTH SERVICES,

                         Respondent.



         SUTTON, J. — Magdalene Pal appeals the Department of Social and Health Services1 Board

of Appeals’ finding that she neglected a vulnerable adult. Pal argues that the Department

erroneously interpreted and applied the statutory definition of neglect and failed to support its

finding of neglect with substantial evidence.

         We hold that, although the Department did not erroneously interpret and apply the statutory

definition of neglect, the finding of neglect was not supported by substantial evidence.

Consequently, we reverse the Department’s finding of neglect against Pal. We also hold that the

Department’s actions were substantially justified, and we therefore deny Pal’s request for attorney

fees and costs under the Equal Access to Justice Act (EAJA), RCW 4.84.350.




1
    Now the Department of Children, Youth, and Families.
No. 50660-2-II


                                             FACTS

                                     I. SUBSTANTIVE FACTS

A.     BACKGROUND

       Timothy2 became a Developmental Disabilities Administration (DDA) client in June 2000

when he was 17 years old based on his diagnosis of mental retardation. Timothy experiences

paranoia and his ability to care for himself independently is limited. As a result of Timothy’s

limitations, he qualified for 69 hours of paid personal care services per month through DDA.

Timothy completed high school but struggles with reading. In the past, Timothy has lived on his

own as well as in residential treatment facilities. Timothy has no known history of self-harm,

suicidal ideation, or overdosing on medication.

       Timothy has a history of forgetting to take his medications. When Timothy lived on his

own, he had an agency care provider who checked in with him and ensured he was taking his

medications. In January 2011, Timothy lived at a residential treatment facility and was preparing

to move into a mother-in-law suite at Magdalene Pal’s home. While living at the residential

treatment center, Timothy’s medications were kept in a lockbox in the medication room. During

“med pass” times, Timothy would go to the medication room and receive his medicine from the

facility’s staff. Agency Record (AR) at 10; 243.

       Pal was a DSHS-authorized caregiver from 2009 until December 2011. Pal lives with her

husband, two children, and her mother Raj Pal, who is also a DSHS-authorized caregiver. Pal

became Timothy’s caregiver in January 2011. When Timothy arrived at Pal’s home, the residential



2
 We refer to the vulnerable adult by his first name to protect his confidentiality. We intend no
disrespect.


                                                  2
No. 50660-2-II


treatment facility dropped him off with a garbage bag containing all of his belongings. Bubble

packs of all Timothy’s medications were unorganized in the garbage bag. Timothy and Pal worked

together to organize his medications into a pill organizer. Timothy was able to identify his

medications by their different shapes, sizes, and colors. The following day, Pal called the

pharmacy to confirm Timothy’s medications and proper dosages.

       Pal continued to provide Timothy services until the Department issued a finding of neglect

against her in December 2011. Following the finding of neglect against Pal, Timothy continued

living at Pal’s home, and Raj3 took over as Timothy’s caregiver.

B.     INCIDENT

       In early August 2011, Pal told Timothy that in two weeks she would be going out of town

for the weekend to visit her in-laws. Pal explained to Timothy that while she was gone Raj would

be giving him his meals and medications, and that Timothy could reach Pal by phone any time.

Because Raj lived in the home, Raj and Timothy were familiar with each other; Timothy called

her “sweet grandma.” AR at 22. Pal told Timothy that she’d call to check in regularly. Pal notified

Timothy’s DDA case manager Ricki Bournival, about the arrangement and Bournival approved it.

       Before leaving for her trip, Pal organized Timothy’s medications for that evening and the

following two days into a pill organizer which designated doses for “a.m.” and “p.m.” each day.

II Report of Proceedings (RP) at 42. The organizer contained five doses of Timothy’s medications.

The day of Pal’s trip, as she was packing up to leave, Timothy came into the house, saw the pill

organizer on the counter, and took it. Raj informed Pal that Timothy had taken the pill organizer,



3
  Because Raj Pal and the appellant share a last name, we refer to Raj Pal by her first name. We
intend no disrespect.


                                                3
No. 50660-2-II


and Pal tried to convince him to return it. Timothy refused to return the pill organizer. Timothy

argued with Pal, saying he wanted to keep the medications himself and pointing out that he had

been in charge of his own medications when he lived on his own in the past. Timothy argued that

he was not a child and took the organizer to his room.

       Because Timothy would not return the pill organizer, Pal and Raj adjusted their plan and

decided to have Raj check on Timothy and tell him when it was time for him to take his medication.

Pal explained to Timothy how the pill organizer worked and showed him that the top of the

organizer was his morning dose and the bottom was his evening dose. Timothy indicated that he

understood.

       Pal then left for her trip. When Raj brought Timothy dinner that evening she assumed he

had taken his evening dose because the pill organizer for that day was empty, but the remaining

doses were still in the pill organizer. Half an hour later, Timothy told Pal’s neighbor that he had

taken all of his medication for the weekend. The neighbor then called Pal, who called Raj. Raj

went to Timothy’s room and asked where the pill organizer was, but he would not tell her. She

ultimately found the empty organizer under the couch. Timothy told Raj that he had taken all of

the medication so he would not have to take them the following day. Raj called 9-1-1, and Timothy

was ultimately transported to the hospital.

       At the hospital, Timothy was admitted for observation and psychological evaluation for

“altered mental status with possible overdose.” AR at 12. Hospital records showed that Timothy

had taken excessive amounts of carbamazepine. During a psychological consultation at the

hospital Timothy told the provider, “I took too many pills and almost killed myself [be]cause I

was agitated and upset.” AR at 12. The provider also noted that Timothy acknowledged regret



                                                4
No. 50660-2-II


for his actions and did not seem to have an appreciation of the severity of his ingestion. The

hospital also ordered a psychiatric consult which found that Timothy had no suicidal ideation at

the time he was released. A registered nurse noted that Timothy “accidentally took both a.m. and

p.m. meds.” The hospital found that Timothy’s actions were “an impulsive ingestion.” AR at 13.

       Timothy was released from the hospital four days after his admission. Upon his release,

Timothy returned to his regular living arrangement at Pal’s home. Pal continued as Timothy’s

caregiver for the next four months.

                                      II. PROCEDURAL FACTS

A.     NEGLECT FINDING

       On August 22, 2011, the Department’s Adult Protective Services division (APS) received

a report that Pal had neglected Timothy. Max Horn, an investigative social worker for APS,

initiated his investigation that day. As part of his investigation, Horn interviewed Timothy, Pal,

and reviewed collateral documentation. Horn did not interview Raj, Pal’s neighbor, or any of the

medical providers who treated Timothy during his hospital admission.

       On December 20, 2011, the Department mailed Pal a letter notifying her that the

Department had made a finding that she had neglected a vulnerable adult by leaving “a vulnerable

adult to administer his medications while [she] went out of town for a few days, knowing the

vulnerable adult had a history of inaccurate medication administration and that the vulnerable adult

was unable to read or write.” AR at 2, 224. Pal requested a hearing but was denied for timeliness.

Pal v. Dep’t of Soc. & Health Servs., 185 Wn. App. 775, 780, 342 P.3d 1190 (2015). After the

superior court affirmed her denial, she appealed to this court, and we reversed. Pal, 185 Wn. App.

at 789. The matter was remanded for a hearing before the Office of Administrative Hearings.



                                                 5
No. 50660-2-II


B.     ADMINISTRATIVE LAW JUDGE HEARING

       Pal and the Department appeared for a hearing before an administrative law judge (ALJ)

on January 8, 2016. At the hearing, Horn testified that in the course of his investigation he

interviewed Timothy, Pal, Timothy’s mother, and DDA case manager Ricki Bournival.

       Bournival also testified at the hearing. Bournival testified that Timothy had been one of

her clients for about nine years. Bournival explained the details of a care assessment (ISP) she

completed for Timothy in January 2011. Bournival testified that the care assessment plan listed

“client limitations” and “client strengths” which were populated from drop down lists. I RP 2 at

00-01. Bournival also testified that she would select anything from a drop down list that could

potentially apply to a client. Bournival explained that the care assessment was primarily to

generate the number of hours a DDA client needs as opposed to giving specific instructions to a

caregiver. When asked where a caregiver would turn to find out specifically what she needs to do

for a client, Bournival explained:

       Most of the time that is dependent on the client’s living situation. . . . [I]n the
       situation like where Tim was living at [Pal]’s home, it was more of a verbal
       arrangement and verbal instructions on “This is what Tim benefits from. This is –
       these are Tim’s strengths. These are his weakness [sic]. This is what he’s done in
       the past. This is what, you know, would be good in the future.”

I RP at 211-12.

       At the time the ISP was completed, Timothy was living at a residential treatment facility

but had plans to move to Pal’s home where he would rent a mother-in-law suite. Bournival noted

that the care assessment identified that Timothy needed “partial physical assistance” with a host

of health and safety activities, including: taking medications, avoiding health and safety hazards,

obtaining healthcare services, maintaining a nutritious diet, maintaining physical health and



                                                6
No. 50660-2-II


fitness, and maintaining emotional wellbeing.        Bournival explained that “partial physical

assistance” means “that someone would have to use their body in some way to assist the client.” I

RP at 196.

       Bournival noted that she had left a comment in her assessment for health and safety

activities identifying Timothy’s need to have assistance with medications. Bournival testified that

Timothy had difficulty reading labels and is unable to tell time well, making frequency and dosages

difficult for him to manage. Bournival also explained that the comment primarily pertained to

Timothy’s time at the residential treatment facility where he would go to the medication room to

receive his medications from a bubble pack.

       Bournival testified that the assessment identified that Timothy needed “some support” for

behavioral needs, including “prevention of other serious behavior.” I RP at 198. Bournival

explained that the “other serious behavior” related to Timothy’s paranoia, and that “some support”

indicates that

       he needs some support; however, if he were to engage in that behavior it would not
       necessarily cause an imminent risk of, um – it wouldn’t be, like, a death, you know.
       Um, like, it wouldn’t cause death. Whereas, if you’re talking about extensive
       support it’s more like if you’re not right there to deal with it he could, you know,
       have some really negative consequence.

I RP at 198.

       Bournival explained that the care assessment’s notes under “medication management,”

which listed “put medications in lockbox, remind client to take medications,” were based off of

what type of assistance Timothy needed in the seven days prior to the assessment. I RP at 199;

AR at 243. Bournival testified that she would have clarified Timothy’s assistance needs going

forward, especially in relation to a change in living environment, in the comments. The comments



                                                7
No. 50660-2-II


in the care assessment stated, “Meds at [the residential treatment facility] are kept in the medication

room. Tim goes to the med. room during med. pass times and is handed bubble pack. IP will

assist Tim with meds. in his new living situation.” AR at 243. Bournival explained that “IP” was

in reference to Pal. I RP at 203. Bournival testified that Pal was not instructed to keep Timothy’s

medications in a lockbox.

        Bournival explained that Timothy and Pal established an agreed upon plan for his

medication management.

                The informal agreement was that [] she understood that Tim needed help
        with his medication. And he said it would be okay for her to keep the medications
        in her home in a cabinet above her refrigerator. So, that was a verbal agreement
        that he had with her about how she was going to assist him with his medications.

I RP at 214. Bournival explained that Timothy and Pal came to their arrangement together:

        He coordinates his service with his provider. . . . I knew that that was their
        agreement that [] the meds were going to be kept in the house. He was going to
        have access to them, when he had access. She was going to remind him to take his
        medications.

I RP at 214-15. Bournival testified that she was aware of Pal and Timothy’s arrangement.

Bournival testified that Timothy must have expressly agreed to the arrangement. “[Pal] couldn’t

just take his meds and take them, you know. They’re his medications.” I RP at 215.

        When asked why Pal arranged to keep Timothy’s medicine in her home, Bournival testified

that Pal likely wanted to be able to ensure that Timothy was taking his medication as prescribed.

Bournival noted that if Timothy had the medication in his room he might lose them, not take them,

or forget to refill the prescription.

        Bournival testified that she was aware of Pal’s plan to go on vacation for the weekend and

have her mother remind Timothy to take his medications appropriately. Bournival testified that



                                                  8
No. 50660-2-II


she “thought it was a good plan,” but that it was not her position to approve of the plan, explaining,

“Tim is an adult. He has that choice to make.” I RP at 220-21. Bournival testified that Pal’s plan

to pack Timothy’s medication into an organizer for her two-day vacation was a reasonable plan.

She explained, “Yes, it’s a standard plan. It’s what everybody does when — when a care provider

is not available or if a client leaves to go somewhere, then you — you try to make sure that that

client’s going to get their medications.” I RP at 229. Bournival testified that Pal did not have the

authority to tell Timothy he could not have his own medications.

       Bournival testified that Timothy had lived on his own for a period of time. While living

on his own, Timothy had possession of all of his medications and an agency provider would check

in periodically, checking his medications and making sure Timothy had been taking them.

Bournival testified that as long as she had been Timothy’s case manager, he had never overdosed

on medications or been suicidal. Bournival testified that Timothy still lives at Pal’s home and his

medication management plan remains the same.

       At the conclusion of the hearing, the ALJ issued an initial order affirming the finding of

neglect. Pal filed a petition for review to the Department’s Board of Appeals (Board).

C.     APPEAL TO THE BOARD

       A review judge with the Board issued a review decision and final order affirming the ALJ’s

initial order while amending and supplementing the findings of fact and conclusions of law. The

Board entered the following relevant conclusions of law:

       12. The Appellant challenges Findings of Fact 4.20, 4.21, 4.25, and 4.62, asserting
       that the findings fail to include the fact that Timothy’s ISP does not instruct the care
       provider about how to provide medication administration assistance and that the
       Appellant had arranged to call Timothy twice a day in her absence to remind him
       to take his medications. The first part of the assertion is inaccurate as the ISP



                                                  9
No. 50660-2-II


      specifically provides: “Provider gives Tim bubble pack for the appropriate time and
      shows Tim the correct day to punch.” These same specific instructions were part
      of the medication administration at Timothy’s previous residence and the ISP
      specifically instructs that “IP will assist Tim with med[ications].” The ISP states
      in the Caregiver Instructions under the Medication Management section: “Put
      medications in lockbox, Remind client to take medications.” The ISP also
      specifically provides for “partial physical assistance” in the activity of “Taking
      medications” and “assistance required in Self Administration of medication. The
      author of the ISP, Ms. Bournival, testified at hearing that such “assistance” required
      the physical presence of the caregiver when Timothy took his medication by “use
      of her body” and to “make sure that she could keep an eye on” Timothy “making
      sure that he was taking his medications as prescribed.” The ALJ erred in finding
      that no such specific instructions existed in the ISP and Finding of Fact 4.46 has
      been corrected to reflect that such instructions do exist in the ISP.

      13. Reading all of these provisions together, it is clear that the Appellant, as
      Timothy’s contracted formal care provider, is required to be present physically
      when Timothy was taking his medications to ensure he neither under-dosed nor
      overdosed on his prescribed medications. Although Timothy can self-administer
      medications to a certain extent by opening containers and putting medications in
      his mouth, it is clear that he needs a care giver physically present to physically hand
      him the correct medications as well as to observe and monitor that he is taking the
      correct dosage at the correct time. This is because Timothy’s ISP clearly identifies
      his medication management as a “complex regimen,” and lists Timothy’s
      limitations related to medication management as “does not follow frequency or
      dosage; poor coordination; forgets to take medications, unable to read/see labels;
      and unaware of dosages.” Allowing Timothy to retain multiple dosages of his
      medication and then using phone calls from a distant location to remind him to take
      his medications did not meet the specific requirements of the ISP. Nor did having
      the Appellant’s mother check to see if Timothy had taken his medications when he
      was allowed to retain the mediset containing multiple medication dosages.

      ....

      16. The Appellant’s challenges to Findings of Fact 4.49 and 4.59, as well as her
      proposed additional findings of fact, are based on accepting Ms. Bournival’s
      testimony and beliefs, after the fact, as dispositive of what constituted adequate,
      non-negligent care for Timothy. As Timothy’s DDA primary case manager, as well
      as author and signatory of the ISP, Ms. Bournival’s opinion as to the adequacy of
      the care provided by the Appellant should be considered. However, her opinions
      entered after the relevant incident had occurred cannot carry greater weight than
      the clear care directives set forth in the ISP based on Timothy’s established
      cognitive limitations. As correctly stated in the Department’s response, Ms.



                                                10
No. 50660-2-II


      Bournival’s claim that Timothy had sole personal control over his medications in
      the past is contradicted by the testimony of Timothy’s mother and not supported by
      the evidence that is most germane to this issue, Timothy’s ISP. And finally, it
      cannot be ignored that Ms. Bournival’s testimony in this matter could have been
      affected by her role in recommending Timothy be initially placed in the Appellant’s
      care, her desire to retain the Appellant as Timothy’s caregiver based on past
      difficulty in placing him, and future special waiver requirements if he is to be
      moved again. If Ms. Bournival genuinely believed that Timothy could safely retain
      and administer his medications on his own without any caregiver assistance, as
      occurred during the incident at issue in this proceeding, she would have, and should
      have, timely amended his ISP accordingly.

      17. . . . . A contracted individual care provider of a vulnerable adult cannot absolve
      themselves of necessary care duties by simply stating, “it is what the vulnerable
      adult wants, I am legally bound by state and federal law to honor that choice, and
      there is nothing I can do.” Such an argument undermines the purpose of the ISP
      and allows the creation of a situation abetting potential serious self-harm to the
      vulnerable adult. The ISP cannot be interpreted or applied so as to abet self-neglect
      by a vulnerable adult or to allow circumstances dangerous to that vulnerable adult’s
      health, welfare, and safety. The Appellant’s argument is analogous to allowing a
      cognitively impaired vulnerable adult to go out seriously underdressed into
      dangerously inclement weather, without further action on the part of the care giver,
      simply because the vulnerable adult chose to take such dangerous, harmful, and
      inappropriate action.

      18. The evidence in the hearing record supports the facts that Timothy suffers from
      intellectual disability, “needs a lot of support to stay healthy- someone else must
      help him identify his health care needs. . .”; “is not able to read the labels on his
      medication packets and has great difficulty remembering to take meds . . . has great
      difficulty keeping himself safe”; needs partial physical assistance in taking
      medications; “continues to struggle with mental health symptoms, mostly feelings
      of paranoia”; “has great difficulty managing his life due to his inability to read,
      write, tell time/date . . . his judgment is extremely poor”; assistance is required for
      self-administration of medication; and in medication administration, his “ability
      fluctuates, does not follow frequency or dosage, poor coordination, forgets to take
      medications . . . unaware of dosages.” For all of these reasons, when Timothy took
      sole control over his medications and insisted on retaining them, the Appellant had
      an obligation to either contact the necessary resources to aide her in regaining
      physical control of the medications which may have included legal action or, at the
      very least, to stay within physical proximity of Timothy so as to ensure he neither
      under-dosed nor overdosed when self-administering the medications he insisted on
      retaining control over. What the Appellant did do was a relinquishment of
      responsibility and not “the best she could do under the circumstances.”



                                                11
No. 50660-2-II



      19. The Appellant has continuously claimed that no guardianship or other court
      order existed allowing her to directly countermand Timothy’s wishes related to
      medication self-administration. Such legal action could only be commenced upon
      the Appellant immediately contacting Timothy’s DDA caseworker and APS to
      report possible self-neglect or self-abuse by Timothy. Only upon such notification,
      would the Department be apprised of the need to begin immediate action to protect
      Timothy’s health and safety. This may have required immediate emergency legal
      action to obtain a temporary court order or, at the very least, compelled the
      Appellant or some other temporarily assigned care provider to continuously
      monitor Timothy until the time he either voluntarily relinquished the medications
      or took the retained medications at the proper time and dosage under such constant
      physical supervision and monitoring.

      20. There exists substantial evidence in the hearing record corroborating the
      substantiated initial finding of neglect. By her own admission, what the Appellant
      did was a “terrible misunderstanding and mistake.” The Appellant initially
      admitted to the Department investigator that Timothy’s medications are normally
      locked up and she just made a mistake because Timothy “really wanted to do them.”
      This initial admission had a high indicia of reliability, as it constituted a statement
      against self-interest and was made when the Appellant may not have been
      completely cognizant of the ramifications of admitting she failed to secure the
      medications and had made a mistake. The Appellant did not challenge her mother’s
      admission that they “treat [Timothy] like a child, like we have another kid beside
      of [sic] my grandson.” But then failed to explain why they keep medications out
      of the reach of the young children in the household, but not out of Timothy’s reach
      during the relevant incident. The Appellant admitted that prior to the incident, the
      plan was for her mother to “give [Timothy] his meds” while the Appellant was
      away. The Appellant’s mother admitted that at the time of the incident she was not
      fully aware of Timothy’s care needs and limitations related to medication
      administration. The Appellant argues that it is the care plan (ISP) that is critical to
      whether Timothy was neglected, not his mother’s opinions or expectations, but then
      argues that the specific requirement of the care plan that the care provider provide
      physical assistance in medication administration can be ignored based on the wishes
      of the vulnerable adult. And finally, the Appellant admitted at hearing that she was
      trained to call Timothy’s case manager if she was unable to perform a service for
      him, but did not do so during the relevant incident.

      21. Based on Timothy’s unique individual needs and limitations, the Appellant’s
      failure to take action to insure Timothy did not under-dose or overdose on his
      medications was an omission that demonstrated a serious disregard of the
      consequences of such a magnitude as to constitute a clear and present danger to
      Timothy’s health, welfare, or safety, as borne out by his overdosing on his



                                                12
No. 50660-2-II


       medications during unsupervised self-medication requiring emergency
       transportation to, and care at, a hospital. This conclusion is reached accepting the
       common language usage for the terms “serious disregard” and “clear and present
       danger.”

       22. The Appellant’s failure to provide physical assistance to ensure adequate
       supervision and monitoring of Timothy’s self-administration of his medications did
       constitute neglect as defined in former, but applicable, RCW 74.34.020(12)(b) as
       referenced in and made applicable by the first sentence of WAC XXX-XX-XXXX.

AR at 32-38 (footnotes omitted). Pal appealed the Review Board’s order to the superior court,

which affirmed. Pal appeals.4

                                          ANALYSIS

                                      I. LEGAL PRINCIPLES

       In reviewing an administrative action, we sit in the same position as the superior court,

applying the standards of the Administrative Procedure Act (APA), ch. 34.05 RCW, directly to the

record before the agency. Brighton v. Dep’t of Transp., 109 Wn. App. 855, 861–62, 38 P.3d 344

(2001). Under the APA, we may reverse an agency adjudicative decision if the agency’s decision

is not supported by substantial evidence, or is arbitrary or capricious.     RCW 34.05.570(3);

Brighton, 109 Wn. App. at 862. “The party challenging an agency’s action bears the burden of

demonstrating the invalidity of the decision.” RCW 34.05.570(1)(a); Brighton, 109 Wn. App. at

862.

       Issues of statutory construction are reviewed de novo under the error of law standard. RCW

34.05.570(3)(d); Life Care Ctrs. of Am., Inc. v. Dep’t of Soc. & Health Servs., 162 Wn. App. 370,




4
  Pal assigns error to the Board’s findings of fact 23, 28, 44-46, and 49. Findings to which error
has not been assigned are verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489
(2003).


                                               13
No. 50660-2-II


374, 254 P.3d 919 (2011). Under this standard, we may substitute our interpretation of the law for

the agency’s. R.D. Merrill Co. v. Pollution Control Hearings Bd., 137 Wn.2d 118, 142-43, 969

P.2d 458 (1999).     “Where a statute is within the agency’s special expertise, the agency’s

interpretation is accorded great weight, provided that the statute is ambiguous.” Postema v.

Pollution Control Hearings Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). Ultimately, it is for the

court to determine the meaning and purpose of a statute. City of Redmond v. Cent. Puget Sound

Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998).

       “The findings of fact relevant on appeal are the reviewing officer’s findings of fact—even

those that replace the ALJ’s.” Hardee v. Dep’t of Soc. & Health Servs., 172 Wn.2d 1, 19, 256

P.3d 339 (2011).     In reviewing challenged findings for substantial evidence under RCW

34.05.570(3)(e), “substantial evidence is a sufficient quantity of evidence to persuade a fair-

minded person of the truth or correctness of the order.” Brighton, 109 Wn. App. at 862. We

neither weigh the credibility of witnesses nor substitute our judgment for that of the agency.

Brighton, 109 Wn. App. at 862. We review conclusions of law de novo to determine if the

reviewing judge correctly applied the law. Morgan v. Dep’t of Soc. & Health Servs., 99 Wn. App.

148, 151, 992 P.2d 1023 (2000). And we generally accord substantial deference to agency

decisions. Brighton, 109 Wn. App. at 862.

                                   II. STANDARD OF NEGLECT

       Pal argues that the Board erroneously interpreted and applied the statutory definition of

neglect by impermissibly lowering the statutory standard for a neglect finding and by disregarding

a caregiver’s duty not to violate a DDA client’s right to refuse care services. We disagree.




                                                14
No. 50660-2-II


A.     IMPERMISSIBLY LOWERED STANDARD

       Former RCW 74.34.020(12) (2011)5 defined “neglect,” in relevant part, as:

       (b) an act or omission that demonstrates a serious disregard of consequences of
       such a magnitude as to constitute a clear and present danger to the vulnerable
       adult’s health, welfare, or safety, including but not limited to conduct prohibited
       under RCW 9A.42.100.

       Pal argues that the Board impermissibly lowered the statutory standard for a neglect finding

in three ways. First, by failing to narrowly construe the statute due to the Abuse of Vulnerable

Adults Act’s (AVAA’s), ch. 74.34 RCW, punitive nature. Second, by relying on the dictionary

definitions of “serious disregard” and “clear and present danger” as opposed to the framework set

out in Brown v. Dep’t of Soc. & Health Servs., 190 Wn. App. 572, 360 P.3d 875 (2015). And

third, by employing a hindsight analysis.

1. Punitive Nature of the AVAA

       Pal argues that because the AVAA is punitive in nature it must be construed narrowly. She

urges this court to apply a strict construction of the definition of neglect given the significant

consequences of a neglect finding. However, Pal provides no authority that a narrowing of the

standard in this case is required or that the failure to explicitly narrowly construe the standard

requires reversal. In an attempt to support her position, Pal cites two cases that considered the

punitive nature of statutes when interpreting them: Brown, 190 Wn. App. at 591-92, and

Crosswhite v. Dep’t of Social & Health Servs., 197 Wn. App. 539, 552 n. 6, 389 P.3d 731 (2017).



5
 Because the incident at issue occurred in 2011, the 2011 version of RCW 74.34.020 is applicable.
The statutory definition of “neglect” has remained substantially the same since 2011, however, in
2013 the statute was amended such that subsection (b) included the words “by a person or entity
with a duty of care.” See former RCW 74.34.020(12) (2013). Pal does not contest that she was
“a person with a duty of care” to Timothy.


                                               15
No. 50660-2-II


Brown, a case about the abuse of children act (ACA), ch. 26.44 RCW, stated that because a finding

of neglect of a child can preclude one from obtaining a child care license, statutes relating to a

finding of child neglect must be strictly construed. 190 Wn. App. at 591-92. Crosswhite stated,

“While deferring to agency expertise where appropriate, this court has consistently rejected

[D]epartment interpretations of statutes that broaden its authority to take punitive action.” 197

Wn. App. at 557.

       Pal argues, accurately, that the AVAA has both beneficial and punitive purposes. For

instance, a substantiated finding results in the placement of the offender’s name on a lifelong public

abuse registry which precludes the individual from working or volunteering in positions where she

may have unsupervised contact with vulnerable adults. RCW 74.39A.056(2). A finding of neglect

also disqualifies an individual from obtaining a number of licenses, including a license for an adult

family home or daycare center. RCW 70.127.170(21). A finding of neglect may also disqualify

an individual from obtaining any license issued by the Department of Health. RCW 18.130.055(b),

RCW 18.130.180(24).

       While we acknowledge the significant consequences of a neglect finding, these

consequences alone do not require the Board to explicitly narrowly construe the AVAA, nor do

they require reversal of the Board’s order in this case.

2. Brown Framework – “Serious Disregard” and “Clear or Present Danger”

       Pal argues that the Board should have adopted the framework for “serious disregard” and

“clear or present danger” articulated by Division III of this court in Brown, 190 Wn. App. at 590-

91. Br. of Appellant at 17.




                                                 16
No. 50660-2-II


       RCW 74.34.020 does not define “serious disregard” or “clear and present danger.”

Division III of this court established a framework for analyzing “serious disregard” and “clear and

present danger” in Brown. Brown involved an appeal from a finding of neglect of a child against

a mother under the ACA, formerly RCW 26.44.020(16) (2012). 190 Wn. App. at 574. Former

RCW 26.44.020(16)’s definition of negligent treatment mirrors former RCW 74.34.020(12)’s

definition of neglect:

       (16) “Negligent treatment or maltreatment” means an act or failure to act. . . that
       evidences a serious disregard of consequences of such magnitude as to constitute a
       clear and present danger to a child’s health, welfare, or safety, including but not
       limited to conduct prohibited under RCW 9A.42.100.

Former RCW 26.44.020(16) (2012).

       In Brown, Division III of this court rejected the Department’s application of a “reasonable

person” standard to findings of neglect. 190 Wn. App. at 593. The Brown court equated “serious

disregard” to “reckless disregard,” which our Supreme Court has defined as an intentional act or

failure to do an act that it is one’s duty to another to do, knowing or having reason to know of

“facts that would lead a reasonable person to realize that the actor’s conduct not only creates an

unreasonable risk of bodily harm to the other but also involves a high degree of probability that

substantial harm will result to him or her.” Brown, 190 Wn. App. at 590 (emphasis added) (citing

Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953)). Brown also held that the

phrase “clear and present danger,” suggests “more serious misconduct than mere negligence,” and

referenced Washington law on freedom of speech, which protects speech “unless shown likely to

produce a clear and present danger of a serious substantive evil that rises far above public




                                                17
No. 50660-2-II


inconvenience, annoyance, or unrest.” Brown, 190 Wn. App. at 591 (citing City of Bellevue v.

Lorang, 140 Wn.2d 19, 27, 992 P.2d 496 (2000).

       Here, the Board did not consider Brown and instead relied on Webster’s Third New

International Dictionary (1981) to define “serious” as “[g]rave in disposition, appearance, or

manner,” “disregard” as “[t]o treat without fitting respect or attention,” “clear” as “[w]ithout

confusion or obscurity,” and “present” as “[n]ow existing or in progress.” AR at 38, n.216-17.

Given former RCW 26.44.020(16)’s nearly identical definition of “negligent treatment,” it would

have been reasonable for the Board to consider cases such as Brown in determining what qualifies

as neglect as defined under RCW 74.34.020. Further, the AVAA is similar to the ACA in both

structure and purpose. Indeed, courts have looked to relevant ACA jurisprudence as guidance on

issues involving the AVAA. See Kim v. Lakeside Adult Family Home, 185 Wn.2d 532, 543-44,

374 P.3d 121 (2016) (applying a test from an ACA case to an AVAA case and observing that the

AVAA is similar to the ACA and thus ACA case law is persuasive).

       While ACA jurisprudence may well be persuasive in many instances, no case has held that

a Board’s determination under the AVAA is necessarily invalid simply because it does not

explicitly adopt standards laid out in ACA cases. Thus, the Board’s reliance on the dictionary

definitions of “serious disregard” and “clear and present danger” was not improper. Consequently,

we reject Pal’s argument insofar as she contends that the Board’s failure to apply the standard of

neglect articulated in Brown requires reversal.

3. Hindsight Analysis

       Pal also argues that the Board improperly relied on hindsight to conclude serious disregard

and clear and present danger existed because harm occurred. We agree that the Board’s reliance



                                                  18
No. 50660-2-II


on hindsight was improper. Brown, 190 Wn. App. at 596; see also In re Dependency of Lee, 200

Wn. App. 414, 438, 404 P.3d 575 (2017) (holding that the trial court’s reliance on hindsight to

conclude that parents’ rejection of a feeding tube for their medically complex son constituted abuse

or neglect was improper). Thus, we analyze whether substantial evidence, absent hindsight

analysis, supported the Board’s findings of fact in the following sections.

B.     CLIENT’S RIGHT TO REFUSE CARE SERVICES

       Pal argues that the Board improperly rejected her argument regarding Timothy’s right to

refuse care services and concluding that Pal should have taken more drastic action to prevent

Timothy from improperly taking his medicine. We agree, but we hold that, on its own, this error

does not require reversal.

       Pal contends that our Supreme Court’s decision in Raven v. Dep’t of Soc. & Health Servs.,

177 Wn.2d 804, 306 P.3d 920 (2013) is illustrative. There, the Supreme Court considered whether

a guardian committed statutory neglect by deferring to her client’s expressed wishes to live in her

home, despite the reality that the client’s high care needs and lack of cooperation with caregivers

resulted in self-neglect at home. Raven, 177 Wn.2d at 809. The Supreme Court unanimously

reversed the neglect finding, holding that a guardian’s good-faith determination that her ward

opposes nursing home placement cannot be the basis for a finding of neglect. Raven, 177 Wn.2d

at 822, 834.

       Although the facts of Raven are distinguishable, the Raven decision is consistent with

Washington’s public policy regarding the autonomy of disabled persons. For instance, RCW

71A.10.011 states, “The legislature recognizes that the emphasis of state developmental disability

services is shifting from institutional-based care to community services in an effort to increase the



                                                 19
No. 50660-2-II


personal and social independence and fulfillment of persons with developmental disabilities,

consistent with state policy.” Further, WAC 388-825-370 provides that a person providing

personal care services to a client must “[a]ccommodate client’s individual preferences and

differences in providing care, within the scope of the service plan.”

       Here, Pal believed Timothy had a legal right to possess his medications and that her

privilege to handle the medication was contingent upon Timothy’s consent. Pal acknowledges that

Timothy’s right is not absolute, but contends that given his lack of history of overdosing or self-

harm, her decision to respect his wishes and alter the care plan accordingly was appropriate.

       The Board disagreed and concluded that Pal “had an obligation to either contact the

necessary resources to aide her in regaining physical control of the medications which may have

included legal action or, at the very least, to stay within physical proximity of Timothy so as to

ensure he neither under-dosed nor overdosed.” AR at 36 (CL 18). In its conclusion of law 19, the

Board concluded that the proper course of action when Timothy chose to retain his medications

may have included obtaining “immediate emergency legal action to obtain a temporary court order

or, at the very least, compelled the Appellant or some other temporarily assigned care provider to

continuously monitor Timothy . . . under such constant physical supervision.” AR at 36 (CL 19).

       Under the circumstances of this case, the Board’s conclusions of law 18 and 19 are at odds

with both the legislature’s and the Supreme Court’s emphasis on maintaining as much autonomy

as possible for disabled persons. Although Timothy experiences intellectual disability and has

difficulty remembering to take his medications, he—for the most part—lives a relatively

independent lifestyle. Nothing in the record establishes that Timothy’s insistence on retaining five

doses of medicine posed such an immediate risk to his wellbeing that drastic interference with his



                                                20
No. 50660-2-II


autonomy was necessary. The Board’s conclusions, that Pal had an obligation to physically

interfere, invade the private personal space of a legally competent adult, and/or pursue emergency

legal action to mitigate Timothy’s autonomy, were erroneous.

         Consideration of a client’s wishes in adjusting a care plan is appropriate and entitled to

some weight. However a caregiver cannot avoid a finding of neglect for the sole reason that a

vulnerable adult expressed preferences regarding his treatment. Pal’s consideration of Timothy’s

wishes was relevant to, but not dispositive of, a neglect determination.

                                   III. SUBSTANTIAL EVIDENCE

         Pal also argues that the Department failed to provide substantial evidence to support a

finding of neglect. Specifically, Pal argues that the Department failed to prove the necessary

elements of “serious disregard” and “clear and present danger.” Br. of Appellant at 29, 43. We

agree.

         The AVAA does not define “serious disregard” or “clear and present danger.” Here, the

Board relied on the dictionary definitions. However, Pal argues that we should adopt the Brown

framework, which established that the element of “serious disregard” requires that Pal intentionally

acted or failed to perform an act which was her duty to Timothy to perform while knowing or

having reason to know of facts that would lead a reasonable person to realize her conduct not only

created an unreasonable risk of bodily harm but also involved a high degree of probability that

substantial harm would occur. Brown, 190 Wn. App. at 590. We decline to adopt the Brown

standard, but nonetheless hold that substantial evidence does not support a neglect finding.




                                                 21
No. 50660-2-II


A.     SERIOUS DISREGARD

       Pal argues that the Board erroneously concluded that Pal seriously disregarded Timothy’s

wellbeing by violating her duty to assist Timothy with his medication management because the

Board misinterpreted the contents and context of Timothy’s ISP.

       As an initial matter, Pal argues that the conclusions of law related to Pal’s obligations under

Timothy’s ISP are mislabeled findings of fact and should be analyzed under the substantial

evidence standard. Findings of fact are determinations of whether the evidence shows that

something existed or occurred. Casterline v. Roberts, 168 Wn. App. 376, 382, 284 P.3d 743

(2012). We treat findings of fact, labeled as conclusions of law, as findings of fact when

challenged on appeal. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). We agree

that Pal’s obligations under the ISP are factual questions, and consequently, we treat the Board’s

conclusions of law on the matter as findings of fact.

       Pal assigns error to the Board’s conclusion of law 12, which we review as a finding of fact,

which found that the ISP’s instructions for providing medication administration assistance applied

both to Timothy’s care at the group home and to Pal. The Board’s conclusion stated that the ISP

instructions included: “Provider gives Tim bubble pack for the appropriate time and shows Tim

the correct day to punch,” “IP will assist Tim with meds,” “Put medications in lockbox, Remind

client to take medications.” AR at 32 (CL 12). The Board also found that the ISP specifically

provided for “partial physical assistance” for the activity of “[t]aking medications” and “assistance

required” for “Self Administration of medication.” AR at 32 (CL 12). The Board also found that

“Bournival, testified at hearing that such ‘assistance’ required the physical presence of the

caregiver when Timothy took his medication by ‘use of her body’ and to ‘make sure that she could



                                                 22
No. 50660-2-II


keep an eye on’ Timothy ‘making sure that he was taking his medications as prescribed.’” AR at

32 (CL 12).

       Pal also challenges the Board’s conclusion of law 13 which stated that the ISP required Pal

to be physically present when Timothy took his medications, and that allowing Timothy to retain

multiple doses of his medication and remind him to take it by calling him violated the ISP. AR at

32-33 (CL 13).

       The ISP did not mandate that Pal be physically present when Timothy took his medications.

Bournival’s testimony explained that the primary purpose of the ISP was to identify the needs of

a vulnerable adult for purposes of calculating how many hours of care he would need.6 Contrary

to the Board’s finding, Bournival testified that an ISP does not form the basis of what specific

actions are required of a caretaker as part of her services. Rather, Bournival testified that the

details of a specific care plan would be arranged between the vulnerable adult and the caretaker.

       Further, Bournival testified that when she wrote the ISP, Timothy was living at the

residential treatment facility and, therefore, much of the ISP did not apply to Pal. For instance,

Bournival testified that the ISP’s instruction to “put medications in lockbox” did not apply to Pal.

1 RP at 213; AR at 243. Importantly, Bournival testified that of the instructions pertaining to

medication management, only the last sentence, “IP will assist Tim with meds in his new living




6
  In conclusion of law 16, the Board noted that Bournival’s testimony and beliefs should not be
accepted as dispositive of what constituted non-negligent care for Timothy, and should not carry
greater weight than the directives set forth in the ISP. AR at 34 (CL 16). The Board also concluded
that her opinion “should be considered,” and relied on her testimony throughout its other findings
of fact and conclusions of law. AR at 34 (CL 16). In sum, conclusion of law 16 goes to how the
Board weighed Bournival’s testimony, but does not constitute a finding that Bournival’s testimony
in its entirety was not credible.


                                                23
No. 50660-2-II


situation,” applied to Pal. 1 RP at 202-03; AR at 243. She identified that the details of how Pal

would assist Timothy with his medications would be arranged between Pal and Timothy apart

from the ISP.

       Consistent with the notion that the details of what Pal’s assistance of Timothy would entail

would be worked out between the two of them, the ISP did not contain any specific directions to

Pal or define “assistance.” Although the ISP identified that Timothy needed “partial physical

assistance” with medications, nothing in the record supports the Board’s finding that “partial

physical assistance” required Pal’s physical presence or for her to physically hand Timothy every

dose of his medication. Rather, the evidence in the record shows that in drafting the ISP, Bournival

contemplated that Pal and Timothy would work out the details of their arrangement

       Additionally, strict adherence to the ISP, or to Pal and Timothy’s informal arrangement, is

not dispositive of whether Pal acted with serious disregard for Timothy’s wellbeing. Bournival

testified that Timothy’s strengths and weaknesses identified in the ISP were populated from “drop-

down” lists, and Bournival selected anything that could potentially apply. I RP at 201-02, 213.

Bournival was aware of Pal and Timothy’s arrangement and was informed of Pal’s alternate plan

for while she was out of town.

       Substantial evidence does not support the Board’s findings that the ISP imposed strict and

specific requirements on Pal or that Pal seriously disregarded her duty of care to Timothy because

she failed to follow the Board’s interpretation of Timothy’s ISP.

B.     CLEAR & PRESENT DANGER

       Pal also argues that the Department failed to prove that clear and present danger existed

when Pal modified the medication administration plan. Specifically, Pal challenges the Board’s



                                                24
No. 50660-2-II


conclusion of law 21, which stated in relevant part that Pal’s failure to act constituted “a clear and

present danger to Timothy’s health, welfare, or safety, as borne out by his overdosing on his

medications during unsupervised self-medication.” AR at 38. We agree.

       As previously discussed, a finding of neglect cannot rest on hindsight. As such, the Board’s

conclusion that Pal’s decision to allow Timothy to retain his medication constituted a clear and

present danger “as borne out by his overdosing” is improper. AR at 38 (CL 21). The fact that

Timothy ultimately did take multiple doses of his medication at once and required medical care as

a result does not support a finding that a clear and present danger existed at the time Pal chose to

allow Timothy to retain possession of his medications. Likewise, the Board’s reliance on Pal’s

statement after learning of Timothy’s overdose that she “made a mistake” by allowing Timothy to

retain his medications does not support a finding that Pal seriously disregarded a clear and present

danger to Timothy’s wellbeing. AR at 37 (CL 20).

       Nothing in Timothy’s history suggested that the alternate weekend medication plan

presented a danger to Timothy’s wellbeing. Timothy had no known history of self-harm or suicidal

ideation; nor did he have any history of overdosing on his medication. Indeed, the ISP provided

that Timothy needed no assistance with “prevention of suicide attempts.” AR at 239. The evidence

in the record established that Timothy had a history of forgetting to take his medication. Timothy

primarily needed caregiver assistance with his medication management because he would lose his

medicine or forget to take it. Nothing in Timothy’s care plan or his history gave Pal any reason to

think that if Timothy retained possession of his medication for two days that he would be at risk

of overdosing, particularly given the plan for Pal to check in on him via phone and for Raj to

remind him in person to take the proper dosages.



                                                 25
No. 50660-2-II


       Rather, the evidence in the record suggests that Pal’s belief that Timothy could safely retain

possession of his medications while relying on Pal and Raj’s reminders to take it was reasonable.

When Timothy lived on his own, he retained full possession of all of his medications. Then, the

agency caregiver would occasionally check in to make sure Timothy had been taking his

medication and remind him if he had forgotten. During that period, Timothy did not overdose.

Nothing in the record suggested any significant change in Timothy’s medication management

needs after the time he lived alone. Nothing in the record suggested that the residential treatment

facility kept Timothy’s medications locked up due to any special risk of Timothy overdosing. His

identified challenges remained that he would lose or forget to take his medication.

       The Board appears to have ascribed significant weight to Pal’s statements to hospital staff

and Horn that Timothy had told her he was feeling paranoid and wanted to take his own

medications. Based on these statements, the Board found that at the time Timothy took the pill

organizer, Pal was aware that Timothy was feeling paranoid. However, substantial evidence does

not support the Board’s finding. The record shows that Timothy was acting relatively normal at

the time he took the pill organizer, apart from being frustrated that Pal and Raj tried to convince

him to give it back. Pal learned that Timothy was feeling paranoid only after the incident when

she spoke to him at the hospital. Moreover, nothing in the record suggested that Timothy’s

paranoia, even if Pal was aware of it at the time he took the pill organizer, placed Timothy at risk

of overdosing or self-harm. The record shows no connection between Timothy’s paranoia—

typically that the police were coming to get him—and any misuse of Timothy’s medicine.

       In conclusion, nothing in the record, apart from hindsight, supports the Board’s conclusion

that Pal seriously disregarded consequences of such a magnitude as to constitute a clear and present



                                                26
No. 50660-2-II


danger to Timothy’s health, welfare, or safety such that a finding of neglect under RCW

74.34.020(12)(b) was proper. Consequently, we reverse the Board’s final order.

                                        ATTORNEY FEES

       Pal argues that she is entitled to attorney fees and costs under the EAJA, RCW 4.84.340-

60, should she prevail on appeal. We hold that although Pal is the prevailing party in this action,

the Department’s action was substantially justified, and therefore, we reject Pal’s request for fees

and costs.

       Under the EAJA, “a court shall award a qualified party that prevails in a judicial review of

an agency action fees and other expenses, including reasonable attorneys’ fees, unless the court

finds that the agency action was substantially justified or that circumstances make an award

unjust.” RCW 4.84.350(1). “‘Substantially justified means justified to a degree that would satisfy

a reasonable person.’” Silverstreak, Inc. v. Dep’t of Labor & Indus., 159 Wn.2d 868, 892, 154

P.3d 891 (2007) (quoting Moen v. Spokane City Police Dep’t, 110 Wn. App. 714, 721, 42 P.3d

456 (2002)). And, an action is substantially justified if it had a reasonable basis in law and in fact.

Aponte v. Dep’t of Soc. & Health Servs., 92 Wn. App. 604, 623, 965 P.2d 626 (1998). It need not

be correct, only reasonable. Raven, 177 Wn.2d at 832.

       The EAJA contemplates that an agency action may be substantially justified even when the

agency’s action is ultimately determined to be unfounded. Courts are wary of awarding fees where

there is no determination that the Department’s actions were arbitrary, willful, or capricious. For

example, in Raven, our Supreme Court declined to award attorney fees even where Raven was the

prevailing party in the action because “an agency would be reasonable in pursuing the same course

of conduct that DSHS followed.” Raven, 177 Wn.2d at 833.



                                                  27
No. 50660-2-II


        Here, the Department’s actions do not appear arbitrary, willful, or capricious, nor was the

Department unreasonable in pursuing its course of conduct in this investigation. Consequently,

we reject Pal’s request for attorney fees and costs.

        Accordingly, we reverse the Department’s finding of neglect and decline to award Pal

attorney fees and costs.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       SUTTON, J.
 We concur:



 LEE, A.C.J.




 WORSWICK, J.




                                                 28
