
    [689 NE2d 518, 666 NYS2d 548]
    In the Matter of Patricia Miller, Respondent, v Barbara A. DeBuono, as Commissioner of Health of the State of New York, et al., Appellants.
    Argued October 15, 1997;
    decided December 4, 1997
    
      POINTS OF COUNSEL
    
      Dennis C. Vacco, Attorney-General, New York City (Barbara K. Hathaway, Barbara G. Billet and Michael Belohlavek of counsel), for appellants.
    I. The regulation precluding nurse aides who have been found guilty of patient abuse from employment in nursing homes was properly applied to petitioner, where the regulation governs future employment for the remedial purpose of protection of nursing home residents. (Forti v New York State Ethics Commn., 75 NY2d 596; Matter of Abrams v Brady, 77 NY2d 741; Matter of Allied Grocers Coop. v Tax Appeals Tribunal, 162 AD2d 791; Bowen v Georgetown Univ. Hosp., 488 US 204; Matter of Hodes v Axelrod, 70 NY2d 364; Chiropractic Assn. v Hilleboe, 12 NY2d 109; Wasmuth v Allen, 14 NY2d 391; Matter of Dr. Bloom Dentist, Inc. v Cruise, 259 NY 358; Matter of Berkovitz v Arbib & Houlberg, 230 NY 261.) II. Petitioner was afforded due process in her administrative proceeding, where she had a hearing prior to any deprivation of a protected interest, and there is no evidence that the standard results in an unacceptable risk of error. (Board of Regents v Roth, 408 US 564; Mathews v Eldridge, 424 US 319; Matter of Medicon Diagnostic Labs. v Perales, 74 NY2d 539; Hope v Perales, 83 NY2d 563; Matter of Klein [Hartnett], 78 NY2d 662; Martinez v Blum, 624 F2d 1, 450 US 924; Addington v Texas, 441 US 418; Santosky v Kramer, 455 US 745; Uzzillia v Commissioner of Health, 47 AD2d 492, 37 NY2d 777; 
      Blue v Koren, 72 F3d 1075.) III. Unlicensed nurse aides are not deprived of equal protection of law because licensed health care providers are subject to discipline by professional licensing authorities, and nurse aides are not. (Maresca v Cuomo, 64 NY2d 242, 474 US 802; Lovelace v Gross, 80 NY2d 419; Town of Brookhaven v State of New York, 142 AD2d 338, 74 NY2d 714; Schneider v Sobol, 76 NY2d 309; Williamson v Lee Opt. Co., 348 US 483.)
    
      Vladeck, Waldman, Elias & Engelhard, P. C., New York City (Karen Honeycutt of counsel), for respondent.
    I. The Court below’s holding that respondents improperly applied the regulation barring petitioner from employment was mandated by the lower court precedent and should therefore be affirmed. (Bowen v Georgetown Univ. Hosp., 488 US 204; Landgraf v USI Film Prods., 511 US 244; Rivers v Roadway Express, 511 US 298; Kaiser Aluminum & Chem. Corp. v Bonjorno, 494 US 827; Forti v New York State Ethics Commn., 75 NY2d 596; Matter of Allied Grocers Coop. v Tax Appeals Tribunal, 162 AD2d 791; Miller v Florida, 482 US 423; Weaver v Graham, 450 US 24; Union Pac. R. R. Co. v Laramie Stock Yards, 231 US 190; Sturges v Carter, 114 US 511.) II. Respondents violated petitioner’s due process rights by depriving her of a protected liberty interest based on an unconstitutional burden of proof. (Willner v Committee on Character, 373 US 96; Schware v Board of Bar Examiners, 353 US 232; Barry v Barschi, 443 US 55; Phillips v Vandygriff, 711 F2d 1217, 469 US 821; Greene v McElroy, 360 US 474; Sosa v Board of Mgrs., 437 F2d 173; Moffitt v Town of Brookfield, 950 F2d 880; Wisconsin v Constantineau, 400 US 433; Paul v Davis, 424 US 693.) III. Respondents violated petitioner’s equal protection rights under the Fourteenth Amendment. (Plyler v Doe, 457 US 202, 458 US 1131; Royster Guano Co. v Virginia, 253 US 412; Schweiker v Wilson, 450 US 221; Cleburne v Cleburne Living Ctr., 473 US 432; San Antonio School Dist. v Rodriguez, 411 US 1, 959; Reed v Reed, 404 US 71; Matter of Abrams v Bronstein, 33 NY2d 488; McGuire v Switzer, 734 F Supp 99; Hooper v Bernalillo County Assessor, 472 US 612; Williams v Vermont, 472 US 14.)
   OPINION OF THE COURT

Levine, J.

On November 7, 1991, the New York State Commissioner of Health received a report that petitioner Patricia Miller, a certified nurse aide employed at the Greenpark Care Center in Brooklyn, had abused a patient in her care. Specifically, the report alleged that petitioner had "hit [a] patient in her right eye causing her to sustain a bruise.” Following an investigation, the Commissioner decided that sufficient credible evidence existed to support the allegation of patient abuse and, on March 20, 1992, issued a written determination to that effect. Petitioner subsequently was notified of that determination and informed that she had the right to contest the accuracy of the findings and request an administrative fair hearing. Petitioner also was advised that unless the written determination was expunged, the finding of abuse would be forwarded to the agency responsible for maintaining the New York State Nursing Home Nurse Aide Registry, and made available for public disclosure after issuance of the Commissioner’s final order.

Pursuant to Public Health Law § 2803-d (6) (d), petitioner requested a fair hearing, challenging the Commissioner’s written determination. At the conclusion of the hearing, at which the patient and petitioner both testified, the Administrative Law Judge (ALJ) recommended that the Commissioner’s written determination of patient abuse be annulled and the record expunged. In finding that the determination was "not supported by the evidence,” the ALJ noted that, although petitioner’s hand may have come in contact with the patient’s eye, there was no evidence that petitioner intended "to hit or punch or otherwise knowingly [do] what she is charged with doing, that is to hit the patient.”

The Commissioner rejected the ALJ’s proposed findings and conclusion, made contrary findings and sustained the charge of patient abuse against petitioner. On December 2, 1994, the Commissioner’s determination was forwarded to the office of Health Systems Management for placement in the Registry. Thereafter, as mandated by 10 NYCRR 415.4 (b) (1) (ii) (6) (adopted eff Apr. 1, 1992), the Greenpark Care Center terminated petitioner’s employment.

Petitioner then instituted this hybrid CPLR article 78 proceeding and declaratory judgment action objecting to the Commissioner’s alleged retroactive enforcement of the regulatory provision (as applied to her conduct predating the regulation) prohibiting future employment once a finding of abuse has been entered into the Nurse Aide Registry. In addition, petitioner challenged the Commissioner’s written determination as an abuse of discretion, and not in accordance with substantial evidence. Petitioner also sought a declaration that 10 NYCRR 415.4 (b) (1) (ii) (6) violated her due process rights (US Const 14th Amend) by requiring her termination upon the entry of a finding of patient abuse in the Registry supported merely by substantial evidence, and further deprived her of equal protection under law (id.) since, under this regulation, certified nurse aides are treated differently from licensed health care professionals.

On transfer from Supreme Court, the Appellate Division confirmed the Commissioner’s written determination of patient abuse, finding that it was supported by substantial evidence. Nonetheless, deeming the regulations to have been "retroactively” applied to petitioner, that Court annulled, on the law, so much of the administrative action as prohibited petitioner from employment as a nurse aide, ruling essentially that placement on the Registry was the only legal sanction for her alleged misconduct at the time it was committed (235 AD2d 480). We granted respondents, officials of the State Department of Health, leave to appeal.

We conclude that the regulation was not improperly applied retroactively to petitioner. Instead of directing a reversal, however, we now modify the Appellate Division order and remit to the Commissioner of Health for a new determination on the existing record using a constitutionally required preponderance of the evidence standard of proof.

I

Public Health Law § 2803-d requires administrators, physicians and health care professionals, and permits other concerned individuals, to report suspected incidents of abuse or neglect if they "have reasonable cause to believe” that a patient of a residential health care facility had been physically abused, mistreated or neglected by the staff of such facility (Public Health Law § 2803-d [1], [2]). The statute empowers the Commissioner, upon receipt of such a report, to investigate the allegations of patient abuse and, based upon the findings of the investigation, to issue a written determination of whether or not sufficient credible evidence exists to sustain the allegations (see, Public Health Law § 2803-d [6] [a]; 10 NYCRR 81.5; see also, Governor’s Mem approving L 1980, ch 340, 1980 McKinney’s Session Laws of NY, at 1865; Mem of Dept of Health, 1980 NY Legis Ann, at 141).

If the Commissioner sustains the allegations, the subject of the investigation may, within 30 days of notification, request that the record be amended or expunged (Public Health Law § 2803-d [6] [d]). If the Commissioner does not comply with such a request, the subject may pursue an administrative fair hearing and seek expungement on the grounds that the record is inaccurate or the written determination is not supported by the evidence (id.; see also, 10 NYCRR 81.6 [b]). At the fair hearing, the burden of proof is on the Department of Health (Public Health Law § 2803-d [6] [d]) and, as the statute sets forth no specific evidentiary standard, the hearing is governed by the State Administrative Procedure Act which provides:

"[n]o decision, determination or order shall be made except upon consideration of the record as a whole * * * and as supported by and in accordance with substantial evidence” (State Administrative Procedure Act § 306 [1] [emphasis supplied]).

If the prior determination is upheld, the Commissioner shall, in addition to other penalties prescribed by law, report the finding to the Nurse Aide Registry (see, Public Health Law § 2803-d [6] [g]; [7]; § 2803-j [3] [d]; see also, 42 USC § 1396r [e] [2] [requiring States to establish and maintain a Nurse Aide Registry]; 42 USC § 1396r [g] [1] [C] [requiring States to report findings of abuse, neglect or misappropriation to the State Nurse Aide Registry]; 42 CFR 488.335).

As previously noted, effective April 1, 1992, the State Department of Health promulgated a new regulation for residential care facilities Statewide which specifically prohibits nursing homes from employing nurse aides "who have * * * had a finding entered into the New York State Nurse Aide Registry concerning abuse, neglect or mistreatment of residents or misappropriation of their property” (10 NYCRR 415.4 [b] [1] [ii] [6]). The Department’s regulation, issued to satisfy Medicaid and Medicare participation requirements (see, 42 CFR 442.100, 430.10), corresponds to a Federal directive promulgated by the Secretary of Health and Human Services which also prohibits the employment of nurse aides under identical circumstances (see, 42 CFR 483.13 [c] [1] [ii] [B] [eff Apr. 1, 1992]; see also, 56 Fed. Reg 48914 [1991] [stating that it "would be irresponsible * * * to allow nurse aides who have abused or neglected residents * * * to have the opportunity to jeopardize resident safety again”]).

II

We agree with the position of respondents, on their appeal, that the Appellate Division erred in annulling petitioner’s discharge on the ground that it resulted from an improper retroactive application of 10 NYCRR 415.4 to conduct which allegedly occurred prior to the adoption of that provision.

In Forti v New York State Ethics Commn. (75 NY2d 596), this Court stated that " '[a] statute is not retroactive * * * when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events’ ” (id., at 609 [quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 51, at 87] [emphasis supplied]). We held in Forti that where the requirements for engaging in specified professional activity are changed to govern future professional eligibility, a statute does not operate " 'retroactively]’ in any true sense” even though its application may be triggered by an event which occurred prior to its effective date (see, id., at 609-610; see also, Matter of Abrams v Brady, 77 NY2d 741, 750-751; Matter of Allied Grocers Coop. v Tax Appeals Tribunal, 162 AD2d 791, 792-793).

Critical to our determination in Forti was that the newly enacted restriction was not intended as punishment for past conduct; rather, the enhanced limitation applied only to then-future transactions notwithstanding that prior conduct might affect, prospectively, those transactions (see, Forti v New York State Ethics Commn., supra, at 609-611; Matter of Allied Grocers Coop. v Tax Appeals Tribunal, 162 AD2d, at 792-793, supra; Matter of Springer v Whalen, 68 AD2d 1011, 1012, Iv denied 47 NY2d 710)

The rationale of Forti governs the issue of retroactivity here. Public health regulation 10 NYCRR 415.4 prohibits a nursing home from employing individuals "who have * * * had a finding” of abuse, neglect, mistreatment or misappropriation entered into the State Nurse Aide Registry (10 NYCRR 415.4 [b] [1] [ii] [6] [emphasis supplied]). By its terms, the provision aims to regulate employment in futuro by barring residential care facilities from employing any nurse aide who, previously, has been found guilty of patient abuse.

Moreover, respondents’ promulgation of 10 NYCRR 415.4 in no way varied the existing definition of patient abuse {see, 10 NYCRR 81.1 [a]), altered the substantive law governing petitioner’s conduct or changed the procedural scheme by which petitioner could seek redress. In effect at the time of petitioner’s alleged conduct were statutory provisions which (1) required the reporting of patient abuse (Public Health Law § 2803-d [1] — [4]); (2) provided for an opportunity to challenge the Commissioner’s findings, seek expungement, and request a fair hearing (Public Health Law § 2803-d [6] [b], [d]); (3) mandated the listing of sustained findings of abuse in the Nurse Aide Registry (Public Health Law § 2803-d [6] [gj); and (4) authorized the imposition of additional penalties (Public Health Law § 2803-d [7]). Thus, contrary to the conclusion reached below, respondents’ application here of 10 NYCRR 415.4 was not improper merely because petitioner’s alleged disqualifying conduct antedated promulgation of the regulation.

m

Having determined that the regulation was not retroactively applied, we must address petitioner’s contention that the substantial evidence standard of proof contained in section 306 of the State Administrative Procedure Act is constitutionally insufficient as applied in this case. Specifically, she asserts that the Federal Due Process Clause requires the State Department of Health to substantiate a report of patient abuse by a fair preponderance of the evidence prior to forwarding a subject’s name to the Nurse Aide Registry with its resultant discharge from nursing home employment and public disclosure of the finding.

We recognized in Matter of Lee TT. v Dowling (87 NY2d 699, rearg denied sub nom. Matter of Joel P. v Bane, 88 NY2d 920) that there is no constitutional prohibition against the State maintaining a register of those suspected of abuse or maltreatment. Matter of Lee TT., however, holds that the inclusion and dissemination of information contained therein which harms not only an individual’s good name, integrity or standing in the community, but also affects that individual’s present employment or effectively forecloses possible future employment opportunities is sufficient to constitute "stigma plus” and invoke the procedural protection of the Due Process Clause (see, id., at 707-709; see also, Paul v Davis, 424 US 693, 701; Board of Regents v Roth, 408 US 564, 572-574; Valmonte v Bane, 18 F3d 992, 1000-1001 [2d Cir]).

Here, as in Matter of Lee TT., there can be little dispute that the governmental action has impaired a constitutionally protected liberty interest. First, placement of a finding against petitioner of patient abuse in the Registry clearly calls into question her reputation, honor or integrity (see, Matter of Lee TT. v Dowling, supra, at 708-709; see also, Board of Regents v Roth, 408 US, at 573, supra). Moreover, once a finding has been entered in the Registry, that information is then made accessible to health care providers and future employers (10 NYCRR 415.4), and also to the publi.c-at-large without restriction (see, 42 USC § 1396r [e] [2] [B]). In this regard, the potential for injury is far greater here than in circumstances where the dissemination of governmental records has been statutorily limited or controlled (cf., Matter of Lee TT. v Dowling, supra, at 703; Valmonte v Bane, 18 F3d, at 1002, supra). Thus, by publicly branding petitioner a patient abuser, the State’s action affects not only her occasion for employment in the residential health care industry, but also may well extend to prevent future employment opportunities in any arena, thereby placing a tangible burden on her employment prospects (see, Matter of Lee TT. v Dowling, supra, at 709; Valmonte v Bane, supra, at 1001-1002; see also, Paul v Davis, 424 US, at 701, supra).

Even though entry of a finding in the Registry implicates a protected liberty interest, petitioner must still show that the procedural safeguards established by the State are insufficient to prevent a deprivation of that constitutionally protected interest (see, Matter of Lee TT. v Dowling, supra, at 710). Evaluation of the constitutional sufficiency of administrative procedures involves the balancing of three factors: (1) the nature of the private interest affected by the State’s action; (2) the risk of an erroneous deprivation and the effect of additional procedural safeguards; and (3) the governmental interest (see, Mathews v Eldridge, 424 US 319; see also, Matter of Lee TT. v Dowling, supra).

Petitioner’s argument in support of her affected private interest is essentially the same argument that supports her liberty interest; i.e., the State’s stigmatizing characterization of her as a patient abuser prohibits not only her present employment, but also effectively forecloses her freedom to take advantage of any other employment within the realm of patient care. We agree that petitioner has a legitimate interest in pursuing employment in her chosen field, and that the stigma of being labeled a patient abuser may well jeopardize her future employment prospects (see generally, Greene v McElroy, 360 US 474, 492). As to the countervailing State interest, it is beyond dispute that New York State also has a significant interest in protecting elderly, infirm or disabled persons from the infliction of physical harm by those entrusted with their care (see, Uzzillia v Commissioner of Health, 47 AD2d 492, 497 [charging the Commissioner with the "awesome burden” of insuring that nursing home patients receive proper care and appropriate protection], appeal dismissed 37 NY2d 777).

Thus, the decisive factor in this case is the risk of an erroneous deprivation of petitioner’s protected interest through the procedures and safeguards established by the State. The parties do not dispute that the standard of proof necessary to sustain an allegation of patient abuse and forward a subject’s name to the Registry for inclusion thereon is whole-record substantial evidence (see, State Administrative Procedure Act § 306 [1]; Public Health Law § 2803-d [6] [d]). Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180; see also, Matter of Stork Rest. v Boland, 282 NY 256, 273-274). Although perhaps more exacting than the minimal standard of "some credible evidence” we found deficient in Matter of Lee TT., substantial evidence "is less than a preponderance of the evidence” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra, at 180) and, as a burden of proof, it demands only that "a given inference is reasonable and plausible, not necessarily the most probable” (Borchers and Markell, New York State Administrative Procedure and Practice § 3.12, at 51 [1995]; see also, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [as a burden for the trier of fact, the substantial evidence standard may support inconsistent findings]; Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65).

Reports of suspected patient abuse are required not only from administrators and health care professionals, but also may be received from any individual, whether or not they have specific knowledge of the particular incident. Thus, under the substantial evidence standard, the inclusion of a nurse aide on the Registry can be supported by nothing more than the hearsay evidence giving rise to the Commissioner’s initial investigation (cf., Matter of Lee TT. v Dowling, supra, at 711-712). Indeed, at the fair hearing below, the ALJ recognized that absent objective evidence, a decision to sustain an allegation of abuse may well turn on the fact finder’s subjective assessment of "not only credibility, but of possibility.” Based upon the foregoing, any possibly meaningful differences between the substantial evidence standard here and the standard of proof struck in Matter of Lee TT. are insufficient to distinguish that holding from the instant case. Where, as here, mandatory inclusion on the Registry labels a nurse aide as a patient abuser, and indisputably adversely impacts on future employment opportunities, any procedural safeguard of proof by less than a preponderance of the evidence is constitutionally inadequate to protect against an erroneous deprivation of a tangible liberty interest.

Consequently, petitioner is entitled to a new determination by the Commissioner of whether, on the existing record, the allegation of patient abuse was substantiated by a fair preponderance of the evidence (see, Matter of Lee TT. v Dowling, supra). We have considered petitioner’s remaining contentions and find them to be without merit.

Accordingly, the judgment of the Appellate Division should be modified, without costs, and the matter remitted to that Court with directions to remand to the State Commissioner of Health for further proceedings not inconsistent with this opinion.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Ciparick and Wesley concur.

Judgment modified, without costs, and matter remitted to the Appellate Division, Second Department, with directions to remand to respondent Commissioner of Health for further proceedings in accordance with the opinion herein. 
      
       We recognize that our decision may grant affirmative relief to petitioner, who has not cross-appealed from the Appellate Division’s order upholding the Commissioner’s factual determination of abuse, in that, applying the proper standard upon remittal, the Commissioner may ultimately exonerate her of the charge. Here, however, a disposition of this nature is necessary to afford respondents the full relief they seek and, simultaneously, afford petitioner appropriate due process protections on the remittitur (see, Hecht v City of New York, 60 NY2d 57, 62; see also, Cover v Cohen, 61 NY2d 261, 277-278).
     