ORDERS:
ORDER
VACATED AND REMANDED
This case arises on appeal from an Order dated July 18, 1995, by Vastine G. Crouch, Jr., Hearing
Officer, wherein the petition of Medikal Works, Inc. (Appellant) was dismissed upon Motion by
the South Carolina Department of Health and Human Services (Department or SHHSFC(1)). Oral
arguments were heard at the Administrative Law Judge Division (ALJD) offices, Columbia, South
Carolina, on March 5, 1996. The Ruling of the Hearing Officer is vacated and the case is
remanded for the entry of an Order on the record as previously made.
FACTS
On July 1, 1994, the Appellant entered into a written contract with the Department wherein it
agreed to provide personal care aide and private duty nursing services. The contract became
effective on July 1, 1994 and was to continue in force, unless sooner terminated, until June 30,
1995.
Article VII of the contract contains various provisions (Items A-I) authorizing the termination of
the contract. Item J thereunder provides that in the event of a termination, the party terminating
must give notice in writing to the other party. The termination would be effective 30 days after
the date of receipt or immediately effective upon receipt, dependent on the termination provision
involved (emphasis added). Article VIII of the contract provides appeal procedures as the sole
and exclusive remedy upon any dispute arising under the contract terms.
By certified letter dated January 27, 1995, Appellant was requested by the Department to provide
any documentation it had to support its position that Diane Maybin was a registered nurse
supervisor, employed by Appellant to perform duties in the Spartanburg region. Appellant failed
to provide any information, documentation or verification of such. Subsequently, by certified
letter dated February 8, 1995, the Department notified the Appellant that it was terminating the
contract in accordance with the provisions of Article VII, section I thereof, effective February 24,
1995. This section reads as follows:
Within sixty (60) days after SHHSFC or its agent has conducted a compliance review, SHHSFC
will issue a report which will be sent to the Provider by certified mail. Any report identifying
deficiencies will specify conditions upon which the contract may be continued and any corrective
action necessary. The deadline for correcting any deficiencies and reporting to SHHSFC will also
be stipulated. If corrective action is not accomplished within this time frame SHHSFC will take
additional action.
If the Provider or Provider's officers, employees, or agents engage in any action which results in
physical, verbal or emotional abuse to a client; engage in any practices which are deemed illegal;
fail to comply with the Scope of Services as specified in Article III of this contract; fail to meet
compliance review requirements for provision services or fails to make acceptable progress
toward correcting deficiencies as determined by SHHSFC or its agents, such action(s) may result
in the suspension of new client referrals, or termination of the contract.
The Department provided two reasons in the letter dated February 8 for terminating the contract:
1) Failure by Appellant "to comply with the Scope of Services of the contract which require the
contractor to employ a Registered Nurse Supervisor within a sixty (60) minute radius of a client
while services are being rendered", and
2) Failure by Appellant "to comply with the Scope of Services provision which requires that the
Registered Nurse Supervisor meet minimum qualifications as noted in Appendix A-1 and A-2,
Sections D.1.a-f and D.3.a-f of the contract."
In further explanation, the Department stated that Appellant did not have a Registered Nurse
Supervisor employed for the Spartanburg region at any time during the contract period who was
within a sixty (60) minute radius of clients while services were being rendered and who met the
minimum qualifications of a Registered Nurse Supervisor as outlined in the contract.
On February 16, 1995, Appellant filed a Request for Reconsideration with the Department, which
was forwarded to the Department's Division of Appeals and Hearings. It was treated by the
Department as a request for a contested case hearing under the Administrative Procedures Act.
After notice was given, two days of hearings were held on May 2, 1995 and May 15, 1995. At
the conclusion of Appellant's case-in-chief, the Department moved for an Order dismissing the
petition on the ground that upon the facts and the law presented, Appellant had not shown any
right to relief. The Hearing Officer granted the Motion in his Ruling. Appellant has appealed.
LAW/DISCUSSION
Appellant raises three issues on appeal. The first is whether the trial judge (Hearing Officer) erred
in ruling that Appellant was the moving party at the contested case hearing and had the burden of
producing evidence or the burden of going forward with the evidence. The second is whether the
Hearing Officer erred in dismissing Appellant's appeal (case) at the hearing when its sole right was
the ability to appeal. The third issue was whether the Hearing Officer erred in deciding that
Appellant failed to employ a Registered Nurse Supervisor who met at any time during the
contract period all the contract requirements.
1. Party Having Burden of Proof and Procedural Due Process.
Appellant argued that the Hearing Officer erred when he refused to require the Department at the
hearing to affirmatively prove Appellant violated the contract, which violation could provide a
basis for the termination of the contract. Further, Appellant argued due process of law requires
the Department to go forward with the evidence to justify its actions in terminating the contract.
The Department argued Appellant requested the hearing and had ample opportunity both prior to,
and at the hearing, to prove the action of the Department was in error. It argues that the
Appellant, as the moving party, has the obligation of going forward with the evidence and proving
its case.
At oral arguments, Appellant conceded the issues it raised in its first argument. Even so, this
tribunal notes that generally the party who is seeking aid in a judicial process has the affirmative
duty to advance its position and thus carries the burden of proof.
Further, the burden of evidence is imposed upon the party best able to sustain it, that is, the party
having peculiar knowledge of the facts or control of the evidence relating to an issue. Stanley
Smith and Sons v. D.M.R., Inc., 307 S.C. 413, 415 S.E.2d 428 (Ct. App. 1992 ). Appellant was
the source of, and was best able to provide to the Hearing Officer, the information the
Department utilized in terminating the contract. Accordingly, Appellant had the burden to go
forward with the evidence at the trial level and conceded such at arguments. Further, Appellant
conceded the due process exception at oral arguments, having received notice of the hearing and
having received a constitutionally sufficient hearing at which it was allowed to present witnesses,
cross-examine witnesses, present documentary evidence, and was allowed to present its case with
assistance of counsel, if it so desired.
2. Motion to Dismiss
The second issue on appeal is whether the Hearing Officer properly granted the Department's
Motion to Dismiss. Appellant argues in support of its position the failure of the Department to
present any evidence at the hearing entitling it to a favorable decision as a matter of law.
At the conclusion of Appellant's case, counsel for the Department made a Motion for Dismissal
on the basis that Appellant had failed to present any evidence proving that a registered nurse
supervisor was employed during the entire contract period and was accessible immediately by
telephone and within a sixty (60) minute radius of its clients while personal care aide services
were being rendered. Appellant argued at the hearing that the proper motion would be for a
directed verdict versus a motion for dismissal. Further, Appellant argued that the Department's
motion was impermissible since the Department had presented testimony of three witnesses at the
hearing. However, in its written brief, Appellant argues the hearing officer's ruling was in error
due to the Department's failure to present evidence proving Appellant had violated the
Department's rules and regulations.
The Department cites Rule 41(b) of the South Carolina Rules of Civil Procedure (SCRCP) in its
brief but does not argue its applicability. Rather, the Department states it presented evidence at
the hearing and the hearing officer, as the trier of fact, examined all the evidence as presented and
properly ruled thereon.
The ruling of the hearing officer is not clear as to whether he treated Respondent's Motion for
Dismissal as a motion under Rule 41(b); however, such a motion was procedurally improper
under the circumstances. Appellant prosecuted its claim and presented evidence which
demonstrated a right to relief. State v. Mungo, 254 S.C. 438, 175 S.E.2d 802 (1970). Further,
the Department presented the testimony of three witnesses, Carol Shearin, Diane Maybin and
Judy Wolfe, which controverted that of Appellant's witnesses.
In a non-jury civil case, the Respondent may move at the close of Petitioner's case for involuntary
dismissal (nonsuit) of Petitioner's case on the ground that the Petitioner has not shown a right to
relief under the facts and law. The judge may take his own view of the evidence and grant the
motion even when the Petitioner has made a prima facie case. Johnson v. J.P. Stevens and Co.,
308 S.C. 116, 417 S.E.2d 527 (1992). However, a master's denial of a nonsuit motion was
affirmed where the master stated such motions should be granted only where there is no issue of
fact and no issue of inferences to be drawn from the undisputed facts. Janeski v. Fairway Oaks
Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992).
However, SCRCP Rule 52(a) states that in all actions tried by a judge without a jury, the court
"shall find the facts specially and state separately its conclusions of law therein..." Also, S.C.
Code Ann. § 1-23-350 (1976) entitled "Final Decision or Order in Contested Case," requires a
final decision to "include findings of fact and conclusions of law, separately stated." Since this
was a contested case subject to the provisions of the Administrative Procedures Act, any final
decision would require separately stated findings of fact and conclusions of law. In Able
Communications v. S.C. Public Service Comm'n, 290 S.C. 409, 351 S.E.2d 151 (1986), our court
held that:
The findings of fact of an administrative body must be sufficiently detailed to enable the reviewing
court to determine whether the findings are supported by the evidence and whether the law has
been properly applied to those findings. Implicit findings of fact are not sufficient. Where
material facts are in dispute, the administrative body must make specific, express findings of fact.
Although the hearing officer did not issue a final order, his analysis of the testimony in his "Ruling
on Respondent's Motion to Dismiss," is supportive of his decision. However, where a contested
case hearing is conducted, an Order or Decision must be issued with separately stated findings of
fact and conclusions of law.
3. Bias by Hearing Officer or Evidence Supporting Employment of Registered Nurse Supervisor.
In its final argument, Appellant states that it was prejudiced by a biased hearing officer. However,
a thorough review of the transcript reveals that the hearing officer conducted the hearing in an
orderly manner, ruled impartially on objections and was fair to both parties. Also, Appellant
argues it did have a registered nurse supervisor in its employment just prior to the contract
termination. Any impact by the Appellant of the hiring of a registered nurse supervisor shortly
before the contract termination letter was mailed, if such occurred, is to be addressed in a remand
order.
CONCLUSION
In cases involving an administrative agency, such as the South Carolina Department of Health and
Human Services, this tribunal "may affirm the decision of the agency or remand the case" for
further proceedings. S.C. Code Ann. § 1-23-380 (1976). It may reverse an agency's decision
where the findings are clearly erroneous in view of the reliable, probative and substantial evidence
on the whole record or "the findings are affected by legal error."
Although this tribunal finds little if any merit in Appellant's arguments as raised, it can better
address issues raised on appeal when addressed in an order consisting of findings of fact and
conclusions of law.
ORDER
Accordingly, it is hereby
ORDERED that the ruling of the hearing officer is vacated and the case is remanded for the entry
of an Order on the record as previously made. Sufficient findings of fact and conclusions of law
shall be made to afford reasonable basis for appellate review.
AND IT IS SO ORDERED.
__________________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
April 2, 1996
_______________
Fn.1. Effective July 1, 1995, the former South Carolina Department of Health and Human
Services Finance Commission (SHHSFC) was incorporated as part of the South Carolina
Department of Health and Human Services. |
