The appellee, Sammie Berry, is licensed by the State of Arkansas as a practical nurse and is also the owner-operator of a licensed residential care facility within this state. The appellant, Department of Human Services (DHS), through its Office of Long Term Care (OLTC), is empowered by law to make rules and regulations to control residential care facilities. Berry sought a declaratory judgment that certain regulatory provisions adopted by the OLTC were arbitrary and in conflict with the authority granted to the Arkansas State Board of Nursing to regulate the nursing profession. Those regulations adopted by the OLTC govern the administration of medicine in residential care facilities by owner-operators of such facilities. The trial court declared the regulations invalid, and from that judgment, appellant brings this appeal. We reverse.
When considering the validity of a regulation, the court must give the regulation the same presumption of validity as it would a statute. See Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). In reviewing the adoption of regulations by an agency under its informal rule-making procedures, a court is limited to considering whether the administrative action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Arkansas Pharmacists Assoc. v. Harris, 627 F.2d 867 (8th Cir. 1980). A court will not attempt to substitute its judgment for that of the administrative agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). A rule is not invalid simply because it may work a hardship, create inconveniences, or because an evil intended to be regulated does not exist in a particular case.
In the present case, the OLTC bears primary responsibility to regulate and manage the many long term care facilities in Arkansas. The three basis types of facilities are (1) nursing homes, (2) residential care units and (3) adult care centers.1 As previously noted, appellee owns and operates a residential care facility. Basically, in order to qualify for admittance to a residential care setting, a person must be ambulatory and able to evacuate the building under his or her own power within two minutes if an emergency arises. The person must also be able to self-administer his or her own medications and not require nursing care. Unlike residential care facilities, nursing homes provide services for those persons who need medical treatment or who can no longer self-administer medications or evacuate the facility in less than two minutes.
Because persons in nursing homes are given medication and medical treatment, those homes are required to chart and keep extensive records of each resident’s health, medical history, physician orders and overall medical treatment. No such requirements are imposed upon residential care owners or operators. In addition, nursing homes are required to have pharmaceutical committees comprised of the medical director, consulting pharmacists, the director of nurses, and the administrator. This committee is to ensure the medications are being administered properly and are having the desired results.
Residential care facilities and the services they provide are clearly different from those provided in nursing homes. To aid in effectively monitoring residential care services, the OLTC promulgated Regulation 1901 (3) and (4), which are in issue in this cause and provide as follows:
3. Under no circumstances shall an operator or employee or anyone solicited by an operator or employee be permitted to administer any oral medication, injectable medications, eye drops, ear drops' or topical ointments (both prescription and non-prescription drugs).
4. In' addition, any owner and/or operator of a Residential Care Facility who is a licensed nurse who administers any medication to a resident will be in violation of operating an unlicensed nursing home.
Appellee contends, and the trial court held, that provisions 3 and 4 unlawfully restrict a licensed nurse from performing her nursing duties under state law as a licensed nurse and arbitrarily draw a distinction between a home health nurse and a nurse, like Berry, who also happens to own or operate a residential care facility. We disagree.
Provision 3, by its clear terms, merely prohibits a residential care operator or employee from administering medications to residents. Thus, the purpose is directed at regulating the daily operations of residential facilities — not the practice of nursing. Consistent with that purpose, the regulation recognizes that those persons residing in residential care facilities are not afforded the same protections or monitoring devices such as charting, record-keeping, and oversight pharmaceutical committees as are those persons residing in nursing homes. However, if the condition of a person in residential care worsens to the point he or she no longer meets the requirements of that type facility, that person would necessarily be transferred, to a nursing home where the proper medical treatment can be extended the person and where monitoring devices are available to measure and control that treatment.
Appellee’s arguments simply fail to recognize the legitimate distinction between the type care provided by nursing homes from that given by residential care facilities; neither do they acknowledge the valid purpose the OLTC attempts to achieve by its enactment of Regulation 1901 (3). If appellant is not empowered to regulate residential care facilities in this manner, it seems readily apparent that extended medical treatment may be administered persons in such facilities without the monitoring safeguards required of nursing homes.
Home health nursing is available to residential care residents when they are in need of medical care. That type nursing care is extended under the supervision of a physician. However, appellee Berry counters by arguing that she is a nurse, and it is needless to call on outside nursing care when she can promptly and conveniently provide the same care to her residents. While there is some pragmatism in what Berry says, the OLTC must also be mindful that while she may well be a very excellent nurse, she is also an owner/operator who has an economic interest in the residential care facility. The sole interest of an outside home health nurse, on the other hand, is merely to provide for the immediate medical need of his or her patient. In this connection, we would quickly add that the record in this cause would indicate that the appellee runs an excellent facility and that no evidence exists that any actual conflict is present as a result of her being both a nurse and the owner of the facility. Even so, the OLTC is confronted with the prospects that such conflicts are apt to arise in the future if it becomes common practice for residential care facilities to employ staff nurses, thereby blurring the meaningful distinction between such residential care facilities and nursing homes.
Finally, we would add that the OLTC’s regulation, particularly 1901 (7), takes into account that emergency matters do occur and provides that operators or employees of residential care facilities may administer medical treatment to a resident until the resident/patient can be transported to an appropriate medical facility. In sum, the agency, in promulgating Regulation 1901, was mindful of the medical needs of residents who meet the requirements of a residential care facility, and in every instance, required medical treatment is available to those residents. The regulation under attack in no way adversely affects the nursing profession, nor does it restrict a nurse’s opportunity to practice his or her profession, except in the unique situation where that nurse either owns, operates, or is employed by a residential care facility. To date, such a situation has obviously been rare indeed, and where that case should arise, we believe the state has shown a reasonable and legitimate purpose for regulating that residential facility as it has done under Regulation 1901.
The appellee also argues that provision 4 of the regulation set out above is invalid because it results in an arbitrary distinction between equally qualified members of the nursing profession, viz., home health nurses and nurses who own or operate a residential care facility. For reasons already stated, we believe there is a reasonable and recognizable purpose for treating these two so-called classes of nurses differently. We do believe provision 4 is poorly worded since it omits physicians who may be owners or operators of residential care facilities and presumably such a physician /owner could administer medication and treátment to residents of his or her facility. However, no apparent reason is offered for excluding physicians, and while the appellant offers that it interprets provision 4 so as to include physicians, within proscription of the regulation, the provision clearly fails to mention physicians and most likely is defective for failing to do so.
For the above reasons, we reverse.
Holt, C.J., and Purtle, J., dissent.Adult care centers are not in issue in this cause.