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SC Administrative Law Court Decisions

CAPTION:
Medikal Works, Inc. vs. SCDHHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
Medikal Works, Inc.

Respondents:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
96-ALJ-08-0279-AP

APPEARANCES:
For the Petitioner: Oliver W. Johnson, III, Esquire

For the Respondent: Deirdra T. Singleton, Esquire
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This is an appeal from an Order dated May 7, 1996, by Vastine G. Crouch, Jr., Hearing Officer, wherein the petition of Medikal Works, Inc. (Appellant) was dismissed upon Motion by the Department of Health and Human Services (Respondent). Upon consideration of the briefs and oral arguments and review of the applicable law, the ruling of the Hearing Officer is hereby affirmed.

An appellate hearing was conducted pursuant to S.C. Code Ann. § 44-6-190 (Supp. 1995) at the Administrative Law Judge Division on October 2, 1996, at which counsel presented oral arguments. The Appellant raises the following three (3) issues on appeal:

1. Whether the Hearing Officer properly concluded that Appellant failed to employ a Registered Nursing Supervisor during the entire contract period, who was accessible immediately by telephone and within a sixty (60) minute radius of its clients while personal care aide services were being rendered;

2. Whether the Hearing Officer properly granted Respondent's Motion to Dismiss; and

3. Whether the Hearing Officer gave proper weight to Appellant's evidence showing that a Registered Nurse Supervisor was in place prior to termination of the contract.

The standard of review for this case is set forth in the Administrative Procedures Act (APA). The APA provides that an Administrative Law Judge may reverse or modify a decision of the Board if a substantial right has been prejudiced because the Board's findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380 (A)(6)(a)(Supp. 1996).

FACTS

On July 1, 1994, Medikal Works Inc., (Appellant) entered into a contract with the State Health and Human Services Finance Commission (now the South Carolina Department of Health and Human Services) to provide Personal Care Aide and Private Duty Nursing Services. The Respondent terminated the contract on February 24, 1995 because Appellant failed to comply with the Scope of Services of the contract which requires the Contractor to employ a Registered Nurse Supervisor within a sixty (60) minute radius of a client while services are being rendered. Appellant also failed to comply with the Scope of Services provision which requires that the Registered Nurse Supervisor meet the minimum qualifications as described in the contract.

On February 16, 1995, Appellant filed a request for reconsideration and the request was forwarded to Respondent's Division of Appeals and Hearings for a fair hearing to be scheduled pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1995), 44-6-190 (Supp. 1995) and 27 S.C. Code Regs. 126-150 et seq. (1976). Two (2) days of hearings were held on May 2, 1995 and May 15, 1995. At the conclusion of Appellant's case-in-chief, Respondent moved for a dismissal asserting that Appellant had not met its burden of proof in the matter. The Hearing Officer granted Respondent's motion. Appellant appealed the Hearing Officer's decision to the Administrative Law Judge Division (ALJD). Judge Marvin F. Kittrell heard arguments from both parties on the issues involved in the case. On April 2, 1996, Judge Kittrell ordered that the ruling of the Hearing Officer be vacated and the case be remanded for the entry of an Order on the record as previously made. In accordance with Judge Kittrell's Order, the Hearing Officer provided the Court and Appellant's Attorney a copy of his Decision in the matter, dated May 7, 1996. The Appellant filed a Notice of Appeal with the ALJD on June 12, 1996.

CONCLUSIONS OF LAW AND DISCUSSION

Failure of Appellant to Meet Contract Requirements

The Appellant alleges that the evidence does not support the Hearing Officer's decision. The Administrative Procedures Act provides that a reviewing court will not substitute its judgment for that of the administrative agency as to factual matters, but that decisions may be reversed if the findings or decisions are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." Id. "Substantial evidence is neither a mere scintilla of evidence nor evidence viewed blindly from one side of a case, but rather is evidence which, considering the record as a whole, would allow reasonable minds to reach the same conclusion that the administrative agency reached." Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). The possibility of drawing two inconsistent conclusions from evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Lark v. Bi-Lo, supra.

Appellant contends the record does not support that he failed to employ a registered Nursing Supervisor, during the entire contract period who 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 in support of its position that its employee, Ms. Rhinehart, met the contract requirements for a Registered Nurse Supervisor for the Spartanburg area and was accessible immediately by telephone and accessible within a sixty (60) minute radius of clients while personal care aide services were being rendered. However, Ms. Rhinehart testified that she was the Administrative Nursing Supervisor and Director of Nursing, as well as a Registered Nurse Supervisor for this contract. She further testified that in addition to her job duties as Director of Nursing and Administrative Nurse Supervisor, she was the Registered Nurse Supervisor for Richland, Orangeburg, Sumter, Fairfield, Chester, Union, Newberry and Spartanburg Counties. This tribunal finds that Ms. Rhinehart, who testified that she resides in Columbia, does not meet the contract requirement of being accessible within a sixty (60) minute radius of the clients while services are being rendered. The contract requires the employment of a Registered Nurse Supervisor who is accessible immediately, by telephone and within a sixty (60) minute radius of its clients, while services are being rendered. Further, the Appellant alleged that the contract between Appellant and Respondent did not specify how Appellant was to comply with the requirements that Appellant must employ a Registered Nurse Supervisor who was both immediately available by telephone and accessible within sixty (60) minutes of clients for whom services were being performed.

Appendix A-1 and A-2 of the service contract provides that personal care aides will be under the supervision of a registered nurse who will "be immediately accessible by phone and must be physically accessible within sixty (60) minutes from the client's home during any hours services are being provided under [the] contract." The plain meaning of the words in the requirement puts the Appellant on notice that personal care aides must be able to contact the Registered Nurse Supervisor immediately on the telephone if necessary during the time client services were being rendered. Also the meaning of the requirement that the Registered Nurse Supervisor be accessible within a sixty (60) minute radius of clients while services are being rendered is very clear. Appellant must employ a Registered Nurse Supervisor who can physically be at the clients home with sixty (60) minutes of that request. This language is clear and leaves no doubt as to its meaning. See Sphere Drake Ins. Co. v. Litchfield, 313 S.C. 471, 438 S.E.2d 275 (Ct. App. 1993) (if a contract's language is clear and unambiguous, the language alone determines the contract's force and effect; when a contract is unambiguous, clear and explicit, it must be construed according to the terms used by the parties, to be taken and understood in their plain, ordinary, and popular sense).

The contract between the Appellant and Respondent provides that " this contract may be canceled and terminated by either party at any time within the contract period whenever it is determined by such party that the other party has materially breached or otherwise materially failed to comply with its obligations hereunder." The record contains substantial evidence to support the termination of the Appellant's contract .

Appellant also contends that Respondent did not present evidence to support its decision to terminate Appellant's contract thereby violating Appellant's right to due process of law. Appellant was notified and informed that its contract would be terminated if Appellant did not present evidence that it employed a Registered Nurse Supervisor who met the contract requirements in question. Appellant was notified and informed of the reason why its contract was being terminated; was notified of the hearing; was permitted to present the case with the assistance of counsel; was allowed to present witnesses and cross examine Respondent's witnesses; and was allowed to present documentary evidence in support of its position. Due process under the law guarantees notice and an opportunity for a fair hearing. Matthew v. Eldridge, 424 U.S. 319 (1976). This tribunal finds that the Appellant received due process under the law.

Respondent's Motion to Dismiss

The Appellant argued that the Hearing Officer improperly granted Respondent's Motion to Dismiss. The Appellant contends that if it had the opportunity to refute Respondent's witnesses before the Hearing Officer, it would have been able to show that it in fact had a Registered Nurse Supervisor employed, Ms. Carol Shearin, who met the contract requirement.

The Appellant presented its case in an APA hearing to a Hearing Officer as provided in 27 S.C. Code Regs. 126-150 et seq. (1976) and S.C. Code Ann. §1-23-320 (Supp. 1995). The Respondent also presented testimony from three (3) of its witnesses out of order during the Appellant's case in chief who the Appellant cross examined.(1) In fact, Appellant had the opportunity to cross examine Ms. Shearin. Ms. Shearin's testimony supported the Respondent's position that Ms. Shearin was not employed by Appellant during this period and that Appellant did not have a Registered Nurse Supervisor who met the contract requirements employed during the entire contract period. At the close of the Appellant's case the Hearing Officer granted Respondent's Motion to Dismiss.

SCRCP Rule 41(b) states that:

. . .[a]fter the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, without waiving his rights to offer evidence in the event the motion is not granted, may move for a dismissal on the grounds that upon the facts and the law the plaintiff has shown right to relief.

In Johnson v. J.P. Stevens Co., 417 S.E. 2d 527, 308 S.C. 116 (1992) the Court recognized that pursuant to SCRCP Rule 41(b) a nonjury trial judge may "weigh the evidence, determine the facts and render a judgment against the plaintiff at the close of his case if justified." The judge's dismissal is lawful even if the plaintiff established a prima facie case. I find that this rule is also applicable in proceedings before the ALJD. See ALJD Rule 52.

The Hearing Officer was the trier of the facts. 27 S.C. Code Regs. 126-150 (C) (1976). He examined the evidence presented to him by the Appellant and determined that the Appellant did not establish it "maintained a Registered Nurse Supervisor physically available within sixty (60) minutes of the [Appellant's] clients at all times when services were being rendered." There was substantial evidence to support the Hearing Officers findings. Therefore, I find that the Hearing Officer ruled properly when he granted Respondent's Motion to Dismiss at the end of Appellant's case-in-chief.

Hearing Officer's Consideration of Appellant's Evidence.

Appellant alleged that the Hearing Officer gave little or no consideration to Appellant's evidence that Appellant had a Registered Nurse Supervisor employed prior to termination of the contract. The contract requires the employment of a Registered Nurse Supervisor who meets the contract requirements during the entire contract period, not just part of the contract period.

The Hearing Officer was the trier of fact and examined the evidence presented to him. See27 S.C. Code Regs. 126-150(C); 126-154 (1976). As trier of fact, it is within the Hearing Officer's discretion to give whatever weight he deems proper and appropriate to the evidence presented. Corley v. Rowe, 280 S.C. 338, 312 S.E. 2d 720 (Ct. App. 1984). This tribunal will not substitute its judgment for that of the agency as to the weight of the evidence or questions of fact. S.C. Code Ann. § 1-23-380 (6) (Supp. 1994); see also Lark v. Bi-Lo, 276 S.C. 130, 276 S.E. 2d 304 (1981).

CONCLUSION

For the foregoing reasons, the May 7, 1996 Order of the Department of Health and Human Services in this matter is affirmed.

AND IT IS SO ORDERED.

______________________________________

Judge Ralph King Anderson, III

Administrative Law Judge

February 3, 1997

Columbia, South Carolina

_____________________

Fn. 1. Appellant consented to Respondent's request to call these three (3) witnesses out of order, before Appellant had completed its case in chief. See, Transcript pp. 158-159; 253; 331.


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