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In re Appeal by RS Eden/Eden House of Determination of Maltreatment and Order to Pay a Fine

Supreme Court of Minnesota

May 22, 2019

In the Matter of the Appeal by RS Eden/Eden House of the Determination of Maltreatment and Order to Pay a Fine.

         Court of Appeals Office of Appellate Courts

          J. Patrick Plunkett, Nic S. Puechner, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, Minnesota, for appellant.

          Keith Ellison, Attorney General, Heather N. Kjos, Assistant Attorney General, Saint Paul, Minnesota, for respondent.

         SYLLABUS

         The Commissioner of Human Services' finding of maltreatment by neglect for the failure of a supervised living facility to obtain a waiver or to confer with a prescribing physician is not supported by substantial evidence because the facility did not violate any rules and took reasonable steps to protect its client.

          OPINION

          CHUTICH, JUSTICE.

         J.W. tragically died of a drug overdose 5 days after voluntarily departing a supervised living facility, appellant RS Eden, where he had received treatment for 6 days. The Commissioner of Human Services (Commissioner) determined that RS Eden was responsible for maltreatment of J.W. by neglect. Because the record shows that RS Eden complied with the rules regarding the disposition of controlled substances and took reasonable measures to protect J.W., the Commissioner's decision is not supported by substantial evidence. We therefore reverse.

         FACTS

         On February 20, 2016, 28-year-old J.W. was admitted to Fairview Medical Center for detoxification from heroin. His treating physician at Fairview was Dr. Simon, who was the emergency-room doctor on call that day. Dr. Simon had treated J.W. once before for opiate dependence, but he was not J.W.'s primary physician. Dr. Simon categorized J.W.'s opiate dependence as "very severe," because J.W. had entered repeated detoxifications with subsequent relapses.[1]

         J.W. was discharged from the hospital after 5 days with a "Suboxone taper" that Dr. Simon prescribed. Suboxone is a drug composed of naloxone and buprenorphine; the latter is a narcotic schedule-III controlled substance. Minn. Stat. § 152.02, subd. 4(h) (2018). Suboxone eases heroin withdrawal symptoms without the effect of a high. The taper that Dr. Simon prescribed is designed to gradually decrease the amount of Suboxone over the course of a month. As the amount of Suboxone decreases according to the taper, withdrawal symptoms can include nausea, vomiting, hot and cold flashes, body aches, irritability, and cravings for heroin. Dr. Simon testified that it is common for patients to be prescribed Suboxone without entering a treatment center, and he often prescribes Suboxone to people who do not intend to enter treatment centers. Suboxone has a street value for illegal use, although it is safer and less marketable than heroin.

         J.W.'s taper began with an 8-milligram dose of Suboxone each day for 4 days. After 4 days, the dosage went to 6 milligrams, and then the dosage would have continued to lessen every 4 days. When J.W. left Fairview on February 25, he was on the first "step down," receiving 6 milligrams of Suboxone each day. The Suboxone taper was supposed to continue until March 19, 2016.

         J.W. was discharged from Fairview "door-to-door" to RS Eden at 7 a.m., which meant that he was supposed to go directly to RS Eden. The purpose of discharging J.W. door-to-door was to prevent him from spending any time in the community during which he might relapse. Nevertheless, J.W. did not go directly to RS Eden. Instead, according to his counselor at RS Eden, J.W. used "up to a gram of heroin that day and smoked some weed." He then went to RS Eden around noon.

         A counselor conducted an intake of J.W. including a urine analysis and a psychological evaluation. Based on the evaluation, the counselor created an individualized treatment plan for J.W., with a contemplated completion date of September 13, 2016, just over 6 months after he arrived. J.W. did not have the Suboxone with him when he arrived at RS Eden; his mother picked up the prescription and brought it to him that afternoon.

         On March 1, J.W. had two conversations with his counselor at RS Eden in which J.W. expressed concerns that his Suboxone taper was coming to an end. Although J.W. actually had 3 weeks left of his prescription, his counselor did not know that and did not tell J.W. how much Suboxone he had left. Clients administer their own medication at RS Eden: when it was time for J.W. to take his medication, he removed his own prescription bottle from the secured locker and took his medication under staff supervision. A nurse who oversaw J.W.'s medication said that J.W.'s real concern was not that his Suboxone was about to end, but that a taper to a lower dosage was about to occur, and he was worried about withdrawal symptoms.

         In response to J.W.'s concerns, a nurse set up a meeting with RS Eden's on-staff doctor to discuss a prescription for Clonidine for J.W. Clonidine can help reduce withdrawal symptoms occurring with a Suboxone taper. J.W., the doctor, and the nurse met sometime after 9:00 a.m. on March 2, but J.W. said that he did not want Clonidine. The doctor told him that if he changed his mind, the doctor could write a prescription for him. The record shows that the doctor did in fact write a prescription for Clonidine for J.W. at 12:37 p.m. on March 2.

         Shortly after the meeting with RS Eden's doctor, J.W. prepared to leave RS Eden. A nurse saw him at the door and asked what he was doing. When J.W. responded that he was leaving, the nurse asked him to wait so that she could give him some of his medications. She collected those medications for J.W. but then told him that she could not release the Suboxone. J.W. said that was fine and told her he was "going to do an intake at NuWay," another treatment program.

         An RS Eden program director saw J.W. and the nurse in the hallway, and she encouraged J.W. to stay. She also encouraged him to go to the pharmacy to pick up the Clonidine that was waiting for him if he did not want to wait for it at RS Eden. J.W. Left RS Eden despite the nurse and the program director informing him that "being in withdrawal left him highly vulnerable to overdose were he to relapse into heroin use." J.W. left at approximately 2:00 p.m. on March 2, 2016. He had been at RS Eden only 6 days. Less than 10 minutes had elapsed between the time when J.W. informed staff that he was leaving and when he walked out the door.

         Despite his announced intentions, J.W. did not go to NuWay or any other treatment facility. Instead, he went to his mother's home. The next day, Thursday, March 3, J.W.'s mother called RS Eden to try to obtain the Suboxone, but she was unable to reach anyone. She called again on Friday, March 4, and a staff member told her that she would need to speak to the nurse when the nurse returned on March 7. J.W.'s mother also spoke to the RS Eden program director, who told her the law did not allow the facility to release the Suboxone. J.W.'s mother contacted Fairview, but Fairview officials could not offer help because J.W. was not a patient. Fairview officials told her to contact the Minnesota Department of Human Services, which she did on March 4. The person she talked to at the Department "said that she would bring it to someone's attention ASAP." The Department opened a licensing investigation into RS Eden's treatment of J.W. that same day.

         On Monday, March 7, J.W.'s mother called RS Eden and demanded that the nurse release the Suboxone. The nurse explained that she could not discuss J.W.'s case with his mother because J.W. had not authorized RS Eden to do so and that she could not release the Suboxone "because of the law."[2]

         J.W. himself never reached out to anyone at RS Eden or Fairview after leaving the facility. He did text his probation officer to tell her that he had left treatment; he denied that he was using opiates. The probation officer called J.W.'s counselor at RS Eden to get information about how J.W. had been doing before he left treatment.

         RS Eden did not attempt to contact the Fairview doctor, Dr. Simon, either before or after J.W. left the facility. Dr. Simon was not listed on J.W.'s files at RS Eden as a primary physician. The only place that Dr. Simon's name appeared was on J.W.'s Suboxone prescription bottle as the prescribing physician. In addition, RS Eden did not seek a waiver from the regulatory authorities to release J.W.'s Suboxone to him. RS Eden's manual stated that controlled substances would be destroyed upon a client's departure.

         On March 7, 2016, only 5 days after abruptly leaving RS Eden, J.W. died of an overdose. The official cause of death was identified as "mixed drug toxicity," which included "heroin, methamphetamine, and alprazolam (Xanax)."

         On March 25, the Minnesota Department of Human Services changed its investigation into RS Eden from a licensing investigation to a maltreatment investigation. An investigator interviewed the RS Eden nurse, doctor, and program director who played a role in J.W.'s care and departure. He also interviewed Dr. Simon and J.W.'s mother. The investigator asked the Minnesota Department of Health about RS Eden's refusal to release J.W.'s Suboxone, and a health-facility-evaluation supervisor said that RS Eden "was in compliance with . . . regulations by not releasing the individual's controlled medications at the time of discharge."

         The Minnesota Department of Human Services issued a determination of maltreatment by neglect on July 20, 2016, and ordered RS Eden to pay a fine. The investigative report stated that RS Eden should have contacted Dr. Simon or obtained a waiver from the Minnesota Department of Health to allow release ...


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