South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Ann Jagar vs. SCDHHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
Ann Jagar

Respondents:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
08-ALJ-08-0065-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF REMAND

PROCEDURAL POSTURE

This case comes before me in a complex procedural posture on a motion to enforce a previous order of the Administrative Law Court (ALC) bearing docket number 06-ALJ-08-0770, Judge Ralph King Anderson, III presiding. In his 28-page order filed June 7, 2007, Judge Anderson remanded the case to Respondent South Carolina Department of Health and Human Services (HHS) to determine if Appellant had requested a de novo evidentiary hearing and to hold one if she had and to make specific findings of fact based on and consistent with the holdings and clarifications of the law within his order.

Ms. Patricia Harrison, as attorney for Appellant Ann Jagar, appealed that order to the Court of Appeals. That court held that Judge Anderson’s remand order was interlocutory pursuant to Montjoy v. Asten-Hill Dryer Fabrics, 316 S.C. 52, 446 S.E.2d 618 (1994) (“[W]e have consistently held that an order of [the lower court] remanding a case for additional proceedings before an administrative agency is not directly appealable.”). By separate order dated November 7, 2007, the Clerk of the Court of Appeals remanded the case to the Clerk of the Administrative Law Court, who in turn remanded the case to HHS in compliance with Judge Anderson’s order.

On remand, on November 19, 2007, HHS issued an amended order without holding a hearing on the underlying issue of Appellant’s eligibility for Adult Companion Services and whether those were properly denied as duplicative of other HHS services already being provided. Once the amended HHS order was issued, Ms. Harrison, on December 22, 2007, filed an 11-page motion and memorandum with several attachments and exhibits, including pleadings from the pending circuit court case against HHS, essentially rearguing the merits of the first case. The motion after remand was assigned to me under a new docket number 08-ALJ-08-0065-AP. This matter is now before me for decision.

In this motion, Ms. Harrison argues that the hearing officer erred in not holding a de novo evidentiary hearing as required by Judge Anderson’s prior order. Motion at 6-7. She is clearly correct. Regarding the de novo or evidentiary hearing, Judge Anderson held:

A determination of the relevancy of that document is governed by the scope of review at the HHS hearing. However, that resolution is convoluted by the dearth of facts and argument needed to resolve the issue. The Federal Regulations provide that after receiving an adverse decision at the “local evidentiary hearing,” the recipient must be informed of their right “to request that his appeal be a de novo hearing.”[1] 42 C.F.R. § 431.232. Afterwards,

Unless the applicant or recipient specifically requests a de novo hearing, the State agency hearing may consist of a review by the agency hearing officer of the record of the local evidentiary hearing to determine whether the decision of the local hearing officer was supported by substantial evidence in the record.

42 C.F.R. § 431.232. Therefore, though a recipient has the right to a de novo hearing, the recipient must specifically request a de novo hearing to receive that right. Nevertheless, the Regulations require that a recipient be informed of the right to request a de novo hearing. Thus, it would be error not to grant a de novo hearing due to a recipient’s failure to request such a hearing when the Medicaid agency failed to inform the recipient of their right to such a hearing.

Here, there is no evidence in the Record or ruling by the Hearing Officer regarding whether Appellant was informed of her right to request a de novo hearing or whether she specifically requested that the case be heard de novo. In fact, neither the scope of the hearing nor the phrase “de novo” are ever mentioned in the Record. Rather, apparently, Appellant presumes by this request that the scope of the hearing is de novo and conversely the Respondent presumed otherwise. Furthermore, the issue is not addressed in the Final Decision or any of the parties’ Briefs.

I therefore find that this issue must be reviewed on remand to determine if Appellant was informed of her right to request a de novo review and if she was informed of that right, whether she specifically made the request for such review. If the Hearing officer determines that Appellant was informed of her right to de novo review but did not specifically request a de novo hearing, the Hearing Officer should then determine if the case should nevertheless be heard de novo.[2] Following those determinations, if the Hearing Officer determines that the hearing was simply a review of the record of the local evidentiary hearing, the 2006 POC would be inadmissible. On the other hand, if the Hearing Officer determines that the hearing was de novo, the evidence should be admitted and considered by the Hearing Officer in reaching his decision. See Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 57, 595 S.E.2d 851 (Ct. App. 2004).[3]

J. Anderson Opinion at 15-16. In contravention and contradiction of Judge Anderson’s order, the hearing officer held that under South Carolina’s system of providing agency level hearings instead of local evidentiary hearings, Appellant was not entitled to a de novo hearing and thus the agency had no requirement to notify her concerning a de novo hearing. HHS Amended Decision at 4. Judge Anderson clearly held Appellant was entitled to a de novo hearing if requested, and HHS did not appeal Judge Anderson’s order. Thus, this matter must be remanded again for HHS to make the appropriate inquiry in compliance with Judge Anderson’s order.

With regard to more specific findings of fact, Judge Anderson held:

The HHS Hearing Officer resolved this issue based upon his evaluation of the witnesses and documents submitted into evidence. In reviewing his decision, the ALC is limited to determining if the findings of fact are supported by substantial evidence. Martin v. Rapid Plumbing, 369 S.C. 278, 286, 631 S.E.2d 547, 551-2 (Ct. App. 2006). (“review of issues of fact is limited to determining whether the findings are supported by substantial evidence.”) The findings of fact must be “sufficiently detailed to enable this Court to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings.” Hamm v. S.C. Pub. Serv. Comm’n, 309 S.C. 295, 300, 422 S.E.2d 118, 121 (1992). A recital of testimony followed by a general conclusion as to the significance of the evidence is insufficient to enable a reviewing court to address the issues in the case. Hamm v. S. Bell Tel. and Tel. Co., 302 S.C. 132, 394 S.E.2d 311 (1990) (“No more than a recital of testimony and a general conclusion exist here.”).

Here, the Hearing Officer’s findings of fact consisted mostly of statements that certain witnesses testified to various facts. Moreover, in his conclusions of law, the hearing officer based his conclusions not on the findings, but on the evidence presented. As a result, this Court is left to speculate as to whether the hearing officer meant for his recitation of the testimony to reflect his specific findings. Though I would presume that to be the case, the appellate court’s holdings emphasize that such speculation should be avoided.[4] Therefore, I find that this case must be remanded so that sufficient findings of fact can be made to allow a proper review of the case.[5]

J. Anderson Order at 11-12. The hearing officer made specific findings of fact to comply with Judge Anderson’s order but did so without a hearing. Because this matter must be remanded on the de novo/ evidentiary hearing issue, this court need not rule on the remaining issues. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (concluding that an appellate court need not address remaining issues when disposition of a prior issue is dispositive of the case).

Moreover, it seems clear that I cannot modify Judge Anderson’s order. It is well settled and deeply rooted in South Carolina law that:

When one of these judges makes a decision upon the merits of a matter within his jurisdiction, that is not merely the personal opinion of the judge, but a judgment of the Court of Common Pleas, which exhausts the power of the court upon that subject and must stand until reversed or set aside in the manner prescribed by law. There is no appeal from one Circuit judge to another. All are of equal dignity and have the same right to pronounce the judgements of the court. One Circuit judge upon the same facts, has no power to change, alter or reverse a decision of a brother judge of the same Circuit.

Steele v. C., C. & A. Railroad Co., 14 S.C. 324 (1880).

The rule is well settled that the prior order of one Circuit Judge may not be modified by the subsequent order of another Circuit Judge, except in cases when the right to do so has been reserved to the succeeding Judge, when it is allowed by rule of court or statute, or when the subsequent order does not alter or substantially affect the ruling or decision represented by the previous order.

Dinkins v. Robbins, 203 S.C. 199, 26 S.E.2d 689, 690 (1943) (citing Mutual Bldg. & Loan Ass’n of Sumter v. Hewson, 196 S.C. 181, 12 S.E.2d 715(1940)). See also La Count v. Gen. Asbestos & Rubber Co., 175 S.C. 110, 178 S.E. 500 (1935). The same principle governs in the instant matter. Thus, the issues Appellant raises rearguing points addressed in Judge Anderson’s initial order or arguing that holdings within his order were error are beyond my authority to decide.

ORDER

IT IS THEREFORE ORDERED that the above-captioned appeal is REMANDED pursuant to Judge Anderson’s prior order for HHS to determine if Appellant was informed of her right to request a de novo review and if she was informed of that right, whether she specifically made the request for such a hearing and to follow up appropriately in compliance with Judge Anderson’s prior order.

AND IT IS SO ORDERED.

______________________________

March 13, 2008 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731



[1] 42 C.F. R. § 431.201. provides that a “[d]e novo hearing means a hearing that starts over from the beginning.”

[2] I reach that conclusion because Regulation 431.232 sets forth that the Hearing Officer may hold the hearing solely upon the record of the local evidentiary hearing.

[3] In Marlboro Park, the Supreme Court directly addressed the issue of whether a contested case review of an administrative case was limited to the facts presented at the agency level. The Court held that though a statute limited the review to the issues presented, the review of the case was not limited to the facts presented at the agency review. Therefore, since the contested case was de novo, the ALJ properly considered all the relevant evidence.

[4] Many of the cases addressing the sufficiency of administrative findings of fact mention that the agency made “a recital of conflicting testimony followed by a general conclusion.” E.g. Able Commc’ns, Inc. v. S.C. Pub. Serv. Comm'n, 290 S.C. 409, 351 S.E.2d 151 (1986); Porter v. S.C. Pub. Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998). In this case, the Hearing Officer did not merely recite “conflicting testimony.” Nevertheless, a review of the premise of the cases addressing this subject establishes the principle that the decision must not be left to “speculation.” Able, 351 S.E.2d at 152. The mere recitation of the testimony in this case leaves this Court in just that position.

[5] Because I am Ordering that this case be remanded, the consideration of the remaining issues are arguably unnecessary. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (concluding that an appellate court need not address remaining issues when disposition of a prior issue is dispositive of the case). Nevertheless, I discuss the remaining issues in an effort to resolve any further disputation below.


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