## Facts

- Leslie Anne Whittington was a licensed nursing home administrator and served as administrator of a skilled nursing facility in Vermont from 2006 to 2010.
- The Office of Professional Regulation charged Whittington with multiple acts of unprofessional conduct under Vermont’s professional discipline statutes and nursing home administrator rules.
- Allegations included poor facility management (inadequate staffing and supplies), creating a hostile environment, deficient recordkeeping, and mishandling regulatory inspections.
- The charges also alleged that Whittington interfered with nursing and medical care, including making or directing psychiatric diagnoses outside her competence and undermining clinical judgments of licensed providers.
- Whittington was accused of misrepresenting her credentials by claiming she was a licensed nursing assistant and near completion of a nursing degree.
- She was also accused of physically removing the state long-term-care ombudsman from the facility during an attempted investigation of a resident complaint.
- After ten days of hearings, an administrative law officer found numerous instances of unprofessional conduct and imposed a five-year license suspension, a $5,000 fine, and remedial conditions.
- The superior court affirmed, and Whittington appealed.

## Issues

1. Whether substantial evidence supported the administrative law officer’s findings of unprofessional conduct, including interference with medical diagnosis and treatment, misrepresentation of credentials, removal of the ombudsman, and regulatory survey-related deficiencies.
2. Whether any findings or conclusions were arbitrary, capricious, an abuse of discretion, or otherwise contrary to law under standards governing review of administrative discipline.
3. Whether the imposed sanctions required reconsideration if some unprofessional-conduct findings were reversed.

## Decision

- The Vermont Supreme Court affirmed in part and reversed in part the unprofessional-conduct determinations.
- The Court affirmed findings that Whittington practiced beyond her scope by interfering with medical/clinical decisionmaking, including psychiatric diagnosis and undermining licensed clinicians’ assessments.
- The Court affirmed findings of unprofessional conduct based on misrepresentation of credentials and the improper physical removal of the ombudsman.
- The Court reversed the unprofessional-conduct determination based solely on Whittington’s questioning of a physician’s withdrawal of life-sustaining treatment.
- The Court reversed the unprofessional-conduct determination based on certain regulatory survey deficiencies because the record and findings did not sufficiently connect those deficiencies to the charged disciplinary standards.
- The Court remanded for redetermination of the sanction in light of the partial reversal.

## Legal Principles

- On appeal from professional discipline, agency fact findings are upheld if supported by substantial evidence; reviewing courts do not reweigh evidence or second-guess credibility determinations.
- A nursing home administrator commits unprofessional conduct by acting beyond the scope of ability and training, including interfering with diagnosis or treatment decisions reserved to licensed clinicians.
- Misrepresentation of professional qualifications and interference with lawful oversight or investigation related to resident welfare may constitute unprofessional conduct.
- Where some bases for discipline are reversed, sanctions must be reconsidered if it is uncertain the same penalty would have been imposed on the remaining, affirmed violations.

## Conclusion

The Vermont Supreme Court upheld most findings that a nursing home administrator engaged in unprofessional conduct, but rejected two grounds (questioning withdrawal of life-sustaining treatment and certain survey-based deficiencies) and remanded for reassessment of sanctions based only on the affirmed misconduct.


Whittington v. Office of Pro. Regul., 87 A.3d 489 (Vt. 2013)