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. |
