Hearing officer accepts facility retraction after discharge-plan lapse in Dutra appeal

A hearing officer at a July 9, 2025 administrative hearing said Whispering Winds Residential Care Home failed to meet statutory obligations when it issued a June 27 discharge notice for resident Denise Dutra, and the facility agreed to retract the notice rather than have the hearing officer rule in Dutra’s favor. The facility had filed the notice on June 27; Dutra appealed on July 7 and the hearing was noticed July 9.

The hearing officer said the statute requires a facility to prepare a discharge plan and give it to the resident within seven days of serving a discharge notice and to submit that plan to the commissioner of the Department of Public Health on or before the hearing date. The officer said the facility had not done that and told attendees, "If I draft a decision, that decision would come out in favor of Mr. Dutra because the facility did not follow the statute and complete its obligations under the statute." The hearing officer identified the controlling provision during the hearing as statute 19A-5-35A and told the facility to consult it before issuing another notice.

Facility representatives described the behavior and safety concerns that led to the June 27 notice. The facility’s representative, Michael Bartolotta, said staff observed Dutra drinking and that his behavior became "erratic, very unpredictable," prompting multiple calls to police and at least one arrest and hospital transport after staff reported panhandling in public. A staff member identified in the hearing as the admissions director, Kathy Wisikowski, said she had tried to find a placement for Dutra and had been "unsuccessful," telling the hearing: "I've tried all the local homeless shelters ... but there's just no availability." The facility also told the hearing that other residents and staff had complained of intimidation tied to Dutra's drinking.

Officials described specific allegations about conduct in the home. One facility speaker said police were called "several times" and that Dutra had been taken to a hospital from a Dunkin' Donuts parking lot after panhandling in front of a liquor store. The facility described incidents it said included pushing furniture into a staff member's foot and reported that other residents felt intimidated when Dutra drank. The facility also reported alleged use of racial slurs in incidents the speaker described: she said the resident had called another resident "monkeys" and "used the N word." Those allegations were presented as the facility’s account of complaints it had received.

Dutra disputed the facility’s characterizations in his testimony. He spoke through the hearing, denied current problematic behavior and said that since late June he had been complying with house rules. He told the hearing, "I don't do anything no more," and asked for help to remain housed. He said he contributed to cleaning and that relations with other residents had improved over the past week.

After discussion of the missing discharge plan and the facility's inability to identify an alternative placement, Bartolotta said the facility would retract the notice. The hearing officer confirmed the retraction on the record and reminded the facility that, before issuing another discharge notice, it must prepare and provide a discharge plan within the statutory timeline and submit it to the Department of Public Health.

The hearing officer described two procedural paths: the hearing could be completed and a decision issued (which the officer said would likely favor Dutra because of the statutory lapse), or the facility could retract the notice and comply with the statute before issuing any future notice. The facility chose to retract. The hearing record shows the retraction was made orally on July 9, 2025, and the hearing officer closed the session after the parties confirmed that decision.

The record reflects competing priorities: the facility described a need to maintain safety for other residents and staff, citing repeated calls to police and complaints; the resident denied ongoing misconduct and sought to remain at the home. The admissions director said the facility could offer services to Dutra if he agreed to accept them, but she said she had been unable to locate an alternate placement at the time of the hearing. The hearing officer emphasized that he had no authority to compel Dutra to enter treatment and that his authority for the session was limited to determining whether the discharge notice had been properly issued.

The parties were left with a procedural outcome: the notice was retracted and the facility was put on notice about the statutory requirements for any future discharge notice. The hearing officer closed the record after the facility and resident said they would attempt to resolve matters and maintain safety and stability for other residents in the interim.

(Reporting note: quotes and characterizations in this article are taken from on-the-record testimony at the July 9, 2025 administrative hearing in the matter of Dutra v. Whispering Winds Residential Care Home. Allegations reported here were made by facility witnesses and disputed by the resident; they were not resolved as findings of fact at this hearing.)