Opinion
No. HHBCV 05 4005388S
October 27, 2005
MEMORANDUM OF DECISION RE MOTION FOR REMAND
On May 3, 2005, the plaintiff appealed to this court from a ruling of the defendant ordering that she be placed on the Connecticut Nurse Aide Registry ("Registry") which would prohibit her from being employed in any chronic and convalescent nursing homes and rest homes with nursing supervision. The defendant had issued a Memorandum of Decision dated March 18, 2005 which found the plaintiff had committed resident abuse and therefore should be placed on the Registry. In the decision, the hearing officer indicated it was relying, in part, on a definition of "verbal abuse" as defined in 42 U.S.C. § 3002(13). However, the parties on appeal agree that the term "verbal abuse" is not defined anywhere in that statute. As a result, the defendant has acknowledged that an error of law exists and it has filed a Motion for Remand for the purpose of allowing the defendant to correct its error prior to the entry of a final judgment.
The hearing officer also found physical abuse in that the "respondent [plaintiff] pushed C.G. [patient] and caused him to fall to the floor." Memorandum of Decision, Finding of Fact, #14, p. 5.
At oral argument before the court, the parties agreed that the matter may be remanded to the defendant. They further agreed that the sole issue to be determined by the court was whether the matter should be remanded for proceedings before the same hearing officer or whether a new hearing officer would be required to hear the matter.
In Lisee v. Commission on Human Rights and Opportunities et al., 258 Conn. 529, 782 A.2d 670 (2001) our Supreme Court noted that "[a] trial court may conclude that an administrative ruling was in error and CT Page 13938-h order further administrative proceedings on that very issue . . . A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication." (Citations omitted, internal quotation marks omitted.) Id., 537-38. It further noted "the legislature intended that administrative appeals and other judicial proceedings be treated similarly, and that considerations of fairness and efficiency underlying the rules governing judicial proceedings also be of primary importance in administrative proceedings." Id., 541. As stated by Judge Cohn at the trial level of the Lisee case, "[t]his court should not have to make its ultimate findings where the agency recognizes that there are defects in the record and asks to correct them in advance of judgment." Lisee v. Connecticut Commission on Human Rights Opportunities, Superior Court, judicial district of New Britain, Docket No. CV 99 0494680 (March 27, 2000, Cohn, J.) ( 26 Conn. L. Rptr. 707). See also, Gervasoni v. McGrath, 36 Conn.Sup. 297, 301.
Given the circumstances, the matter is not ripe for final adjudication by this court. A remand to the defendant is the only method by which this court can assure a meaningful review. Johnston v. Salinas, 56 Conn.App. 772, 746 A.2d 202 (2000). In this instance, a remand will allow the hearing officer to take any additional evidence on the issue of abuse the officer feels necessary for the issuance of a ruling consistent with the law. General Statutes § 4-183(h). Moreover, there is nothing in plaintiff's appeal which indicates that the hearing officer exhibited bias or prejudice in the conduct of the hearing and would therefore make it unfair or improper for the same officer to further consider the matter. Fairness, judicial efficiency and common sense dictate that where an agency has acknowledged on its part an error which is adverse to the interests of the respondent (here the plaintiff) and it wishes to correct the error before a hearing on the merits by the court, the matter should be remanded to the same hearing officer for that purpose. Doing so will enable the hearing officer to clarify a ruling which might otherwise be ambiguous or confusing.
For the reasons cited above, the defendant's Motion CT Page 13938-i for Remand is granted.