Opinion
No. 1849 C.D. 2011
06-27-2012
Victory Support Services, Inc., Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Victory Support Services, Inc. (Victory) asks whether the Department of Public Welfare (DPW), Bureau of Hearings and Appeals, (Bureau) erred in requiring Victory to cease operating one of its facilities because it lacked a personal care home license. Victory contends the Bureau's adopted findings do not support a determination that it operated an unlicensed personal care home as defined by the Public Welfare Code (Code). Specifically, Victory contends the Bureau erred because the administrative law judge (ALJ) improperly shifted the burden of proof and made evidentiary errors. Upon review, we reverse.
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§101-1503.
I. Background
In September 2010, DPW conducted an inspection of a building Victory owned in Philadelphia commonly referred to as the Victory House. Ultimately, DPW determined Victory operated an unlicensed personal care home at Victory House and ordered it to cease and desist such operations. Victory appealed, and a hearing ensued.
DPW also issued notice of a fine. At the ALJ's hearing, DPW stated it did not impose the fine, and that it would rescind that notice. Thus, the ALJ recommended requiring DPW to rescind the notice consistent with its representations, and the Bureau ordered it as such. The notice of the fine is not subject to this appeal.
At a hearing before an ALJ, DPW presented the testimony of its regional licensing administrator, Chevon Mitchell (Mitchell), and Victory presented the testimony of its president, John Scarborough (Scarborough), and its business office manager, Leslie Thomas (Thomas).
On behalf of DPW, Mitchell testified she and two other DPW licensing representatives conducted an on-site investigation at Victory House after DPW received reports of possible licensing violations. According to Mitchell, the purpose of the investigation was to determine whether Victory operated an unlicensed personal care home on the premises.
Specifically, the investigation focused on whether Victory provided the types of services that required a DPW personal care home license. Mitchell explained that the Code defines a personal care home as a facility at which food, shelter, and personal assistance with daily living activities are provided for a period exceeding 24 hours to four or more adults who are not related to the operator, and who do not require the services of a long-term care facility.
Furthermore, Mitchell testified the investigation consisted of a physical sweep of the building and interviews with the residents and employees about the type of care Victory rendered. Additionally, she testified that during her interview of Scarborough, he told her that Victory operated consistent with its Pennsylvania Department of Health (Department of Health) home care agency license. Therefore, according to him, Victory could provide residents with assistance with daily activities as part of its services under that license without a DPW personal care home license.
Thereafter, Mitchell determined six adults lived at Victory House for over 24 hours at a time and that each was unrelated to the operator. Furthermore, Victory provided a variety of services to the residents that could be categorized as assistance with daily living activities pursuant to DPW's regulations. Moreover, she observed Victory did not have a license to operate a personal care home. Thus, Mitchell concluded Victory illegally operated an unlicensed personal care home.
However, on cross-examination, Mitchell conceded the scope of her investigation was limited to determining whether Victory rendered personal care services. Therefore, she did not investigate whether any resident required treatment from a long-term care facility. Furthermore, she observed the Philadelphia Corporation of Aging previously determined three of the six residents needed long-term nursing facility services. Additionally, Mitchell testified she could only assume DPW inquired with the Department of Health about Victory's home care agency license before issuing its cease and desist order.
In response, Victory presented Scarborough's testimony. He testified Victory House was a rental house that accepted "people from all walks of life, disabled and nondisabled alike ... often times people with disabilities that are low income or impoverished." Reproduced Record (R.R.) at 592a. Scarborough explained that Victory maintained a license from the City of Philadelphia to rent the rooms in its building as rental units, and that the residents rented the units as their sole residences.
Scarborough testified Victory House was not a personal care home because only two or three of its six residents did not require treatment from a long-term care facility. In other words, at least three residents required a higher level of care than what is provided by facilities regulated by DPW. Furthermore, these residents chose to receive long-term care from Victory in their home, Victory House, instead of in a hospital consistent with Victory's home care agency license.
Scarborough summarized the relevant regulatory programs, and Victory's corresponding licenses. Specifically, Scarborough testified Victory maintained a DPW license to provide personal assistance services and respite services under the Pennsylvania Medical Assistance Program (MA), Home and Community Based Waiver Program (MA Waiver Program), as a home care agency licensed by the Department of Health. According to Scarborough, under the MA Waiver Program, if an individual is eligible for nursing facility care, he may waive institutional treatment and accept treatment from a licensed waiver service provider, such as a home care agency, at his residence. As proof of the residents' required level of care, Scarborough presented four residents' MA medical evaluation forms.
In sum, Scarborough agreed with Mitchell's testimony that Victory provided personal care services to the Victory House residents. However, Scarborough testified at least three Victory House residents additionally required the treatment of a long-term care facility and received such care under the MA Waiver Program from Victory. Thus, according to Scarborough, Victory House was not a personal care home, but rather it provided a higher level of care as a home care agency that also rented residences at Victory House. Thomas corroborated Scarborough's testimony.
After the hearing, the ALJ determined Victory operated an unlicensed personal care home at Victory House, as Victory provided assistance to its residents consistent with that provided by a personal care home. Moreover, the ALJ determined Victory's Department of Health license did not impact his decision because Victory did not operate within the scope of that license. Specifically, the ALJ determined Victory was not providing services "in the consumer's place of residence or other independent living environment." ALJ Op., 8/25/11, at 5 (citing 28 Pa. Code §611.5 (definition of home health agency)).
Furthermore, although the ALJ agreed with Victory's argument that, if at least three of the six residents required the treatment of a long-term care facility Victory could not be considered a personal care home, the ALJ determined Victory did not carry its burden to prove that any of the residents required long- term care facility treatment. Thus, the ALJ upheld DPW's order; Victory appealed. Thereafter, the Bureau adopted the ALJ's recommendation, and Victory petitioned for review.
II. Issues
On appeal, Victory argues the Bureau's findings do not support its determination. Specifically, Victory contends it did not operate an unlicensed personal care home because it did not provide services to at least four residents consistent with the definition of a personal care home. Furthermore, Victory contends the Bureau reached an erroneous conclusion because it adopted the ALJ's findings, in which the ALJ improperly shifted the burden of proof, wrongly excluded evidence, capriciously disregarded competent testimony, and weighed DPW's witness testimony too heavily.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with the law, and whether the necessary findings of fact were supported by substantial evidence. St. Elizabeth's Child Care Ctr. v. Dep't of Pub. Welfare, 895 A.2d 1280 (Pa. Cmwlth. 2006).
On the day Victory's reply brief was due to this Court, Victory filed a motion requesting a 10-day extension to the briefing schedule. Thereafter, Victory submitted a motion to withdraw its motion to extend its time to file a reply brief. Upon consideration, we grant Victory's motion to withdraw its application for an extension of time; therefore, its application for an extension of time is denied as moot.
III. Discussion
Pursuant to Section 1002 of the Code, no person operating a personal care home may do so without a DPW license. 62 P.S. §1002 ("No person shall maintain, operate or conduct any facility, as defined herein, without having a license therefore issued by [DPW]."). The General Assembly defines a personal care home in pertinent part as:
Section 1001 of the Code defines facility in pertinent part as:
an adult day care center, child day care center, family day care home, boarding home for children, mental health establishment, personal care home, assisted living residence, nursing home, hospital or maternity home, as defined herein, except to the extent that such a facility is operated by the State or Federal governments or those supervised by the department, or licensed pursuant to [Health Care Facilities Act, Act of July 19, 1979 (P.L. 130, No. 48), as amended, 35 P.S. §§ 448.101-448.904b].62 P.S. §1001 (emphasis added).
any premises in which food, shelter and personal assistance or supervision are provided for a period exceeding twenty-four hours for four or more adults who are not relatives of the operator, who do not require the services in or of a licensed long-term care facility but who do require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation of a residence in the event of an emergency or medication prescribed for self administration.62 P.S. §1001 (emphasis added). Under DPW's regulations, the care provide by a personal care home is described as "assistance or supervision in activities of daily living or [with] instrumental activities of daily living." 55 Pa. Code §2600.4 (providing a non-exhaustive list of examples); N. Area Pers. Care Home Adm'rs Ass'n v. Dep't of Pub. Welfare, 899 A.2d 1182 (Pa. Cmwlth. 2006).
Neither the Code nor DPW's regulations define the term "long-term care facility." Rather, because the term relates to facilities defined under the Health Care Facilities Act, 35 P.S. §§448.101-448.904b, the Department of Health's regulations provide a definition. 28 Pa. Code §201.2 (incorporating the federal MA regulations regarding long-term care facilities, 42 C.F.R. §§483.1-483.75). Under this framework, a long-term care facility is defined as any skilled nursing facility that qualifies as a MA services provider. 42 U.S.C. §3002. Thus, if an individual needs care from a MA qualified skilled nursing facility under an MA program, he requires the treatment of a long-term care facility.
Pursuant to the MA Waiver Program, an eligible individual may choose to receive his long-term care facility treatment in his home instead of a nursing facility. In order to provide safe in-home treatment, the Department of Health issues licenses to qualified home care agencies pursuant to the Health Care Facilities Act. Such program and licensing gives meaning to the Code's language: "services in or of a licensed long-term care facility." See 62 P.S. §1001.
Under Health Care Facilities Act, a home care agency is defined in pertinent part as:
[a]n organization, exclusive of a home health care agency, that supplies, arranges or schedules employees to provide or perform activities of daily living or instrumental activities of daily living or companionship services or specialized care on an hourly, shift or continual basis to a consumer in the consumer's place of residence or other independent living environment for which the organization receives a fee, consideration or compensation of any kind.Act of July 19, 1979, P.L. 130, added by the Act of July 7, 2006, P.L. 334, as amended, 35 P.S. §448.802a.
Here, the Bureau did not make any express findings regarding whether any Victory House resident required long-term care. Instead, the ALJ reasoned Victory "did not provide sufficient evidence that any of the six residents required the services in or of a licensed long-term care facility." ALJ Op., at 7. This reasoning was in error.
DPW argues Victory waived this issue by failing to raise it in its petition for review. However, Victory's contention that the Bureau could only have reached its decision by improperly requiring it to meet DPW's burden is fairly comprised within its preserved issue on appeal; therefore, it is not waived. See Pa. R.A.P. 1513(d). --------
The Bureau erred in adopting the ALJ's recommendation, which improperly placed the burden to establish an element of DPW's action to enjoin Victory's operations on Victory. The burden of proof at an initial hearing on an agency's order is on the agency to justify its action. See B.K. v. Dep't of Pub. Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012); S. Hills Health Sys. v. Dep't of Pub. Welfare, 510 A.2d 934 (Pa. Cmwlth. 1986) (the party asserting the existence of certain facts bears the burden of proving them).
Here, the definition of a personal care home lists specific criteria for what type of residents a facility must house in order to require a license. Specifically, four or more individuals must (1) reside at the facility for over 24-hours, (2) be adults, (3) be unrelated to the operator, (4) not require the treatment in or of a long-term health facility but require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation of a residence in the event of an emergency or medication prescribed for self-administration.
As to the level of care provided, the General Assembly used qualifying language, rather than exclusionary language, to describe the level of care rendered at a licensed facility; therefore, such phrases must be read together. See 1 Pa. C.S. §1903; John Hancock Prop. & Cas. Ins. Co. v. Pa. Ins. Dep't., 554 A.2d 618 (Pa. Cmwlth. 1989). Thus, the phrase, "who do not require the services in or of a licensed long-term care facility," works in tandem with the phrase, "but who do require assistance or supervision ...." See 62 P.S. §1001. In essence, the definition describes the level of care rendered at a personal care home as something less than X (long-term care) but equal to, or greater, than Y (aid with daily living activities).
This construction is consistent with the overall regulatory structure that apportions authority over care providing facilities between DPW and the Department of Health based, in part, on the level of care provided at the facility. See id. (DPW has authority over facilities proving personal care services "except [those] ... licensed pursuant to [Health Care Facilities Act by the Department of Health]"). Furthermore, the relevant language in Section 1001 of the Code is distinguished from the language used in cases where this Court determined the statutory structure created an exception, to be treated as an affirmative defense. See e.g., Pa. Liquor Ctrl. Bd. v. T.J.J.R., 548 A.2d 390 (Pa. Cmwlth. 1988) (statutory offense included a list of exceptions available to licensee); McFarland v. Dep't of Pub. Welfare, 551 A.2d 364 (Pa. Cmwlth. 1988) (license requirement stated "requirements shall not apply to ..."). Therefore, DWP's contention in support of burden shifting is unpersuasive.
In sum, it was DPW's responsibility, during its investigation or otherwise, to gather sufficient proof to establish each element of the statutory violation. Furthermore, it remained DPW's burden before the ALJ to justify its order. See B.K. This burden includes establishing that at least three of the residents required personal care services but did not require the treatment of a long-term care facility.
Additionally, here DPW did not produce any evidence to establish that four or more Victory House residents required some level of personal care but did not require treatment from a long-term care facility. Specifically, Mitchell testified her investigation was limited to determining whether the services Victory provided included those provided under a DPW personal care home license. However, she did not consider whether the services were limited to those provided under such a license. To that end, she explained that determining whether a resident required long-term care was outside her expertise, and she did not attempt to do so. R.R. at 472a, 479a, 490a. As such, DPW did not present evidence that four or more Victory House residents did not require the treatment of a long-term care facility, and thus, it did not prove Victory operated an unlicensed personal care home.
Moreover, not only did DPW not establish a necessary element of the definition of a personal care home, but it offered testimony tending to establish the opposite result. Specifically, Mitchell testified, based on the Philadelphia Corporation of Aging's prior assessment, three of the six residents required treatment in a nursing facility, or, in other words, the treatment of a licensed long- term care facility. R.R. at 473a-74a. Moreover, it is undisputed Victory maintained a license from the Department of Health to operate as a home care agency, and that DPW authorized Victory to receive payment under the MA Waiver Program as a home care agency providing long-term care.
Because the Bureau erred in requiring Victory to prove it did not meet the definition of a personal care home, and DPW did not present any evidence to meet that burden, the Bureau erred in determining Victory operated an unlicensed personal care home. As such, we need not consider whether the ALJ also made evidentiary errors in considering Victory's offered evidence. In sum, the Bureau erred in determining Victory operated an unlicensed personal care home at Victory House on the date of DPW's inspection of Victory House.
Accordingly, we reverse.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 27th day of June, 2012, the order of the Department of Public Welfare is REVERSED.
Additionally, Victory Support Services, Inc.'s Motion to Withdraw Application for Extension of Time to File a Reply Brief is GRANTED; Victory Support Services, Inc.'s Motion for Extension of Time to File a Reply Brief is DENIED as moot.
/s/_________
ROBERT SIMPSON, Judge