In the Matter of the Appeal by RS Eden/Eden House of the Determination of Maltreatment and Order to Pay a Fine.
of Appeals Office of Appellate Courts
Patrick Plunkett, Nic S. Puechner, Larkin Hoffman Daly &
Lindgren Ltd., Minneapolis, Minnesota, for appellant.
Ellison, Attorney General, Heather N. Kjos, Assistant
Attorney General, Saint Paul, Minnesota, for respondent.
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.
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.
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
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
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.
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
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.
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
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.
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.
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.
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.
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
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.
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.
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)."
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."
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 ...