Opinion
No. 979 C.D. 2014
04-17-2015
Liberty Manor Personal Care Home and William L. Garvin, Petitioners v. Department of Public Welfare, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Liberty Manor Personal Care Home (Liberty Manor) and William L. Garvin, Liberty Manor's owner/administrator, (together, Petitioners) petition for review of the Order of the Department of Public Welfare (Department), Bureau of Hearings and Appeals (Bureau), that adopted the Recommendation of an Administrative Law Judge (ALJ) denying Petitioners' appeals from the Department's decisions to remove Liberty Manor's residents based on the existence of an emergency situation and to not renew Liberty Manor's Personal Care Home (PCH) license. On appeal, Petitioners argue that the Bureau erred in denying its appeal because: (1) the Department exceeded its authority when it issued the Emergency Removal Order (ERO) based on false allegations regarding Mr. Garvin and without conducting its own investigation of those allegations; (2) the Department's actions on March 4 and 8, 2013 violated Petitioners' due process rights under both the United States and Pennsylvania Constitutions; and (3) the Department should have granted Liberty Manor a provisional license rather than not renewing its license. Also before this Court is the Department's Motion to Strike Brief in Part (Motion) requesting that we strike Petitioners' third argument because it refers to confidential settlement discussions.
Mr. Garvin is an attorney, representing himself and Liberty Manor.
The Department of Public Welfare is now known as the Department of Human Services.
We have consolidated Petitioners' arguments.
The Department's Motion also included a request to strike three exhibits that were attached to Petitioners' brief. This Court granted the Motion as to these exhibits, but indicated that the issue of whether to strike the references to certain facts asserted in the argument portion of Petitioners' brief would be addressed with the merits. Liberty Manor Personal Care Home v. Department of Public Welfare (Pa. Cmwlth., No. 979 C.D. 2014, filed December 29, 2014) (single judge order).
I. Background
a. Department Inspections of Liberty Manor in 2012 and 2013
On October 18, 2012, Department Licensing Inspectors Joseph Phillips (Inspector Phillips) and Dennis Ropon (Inspector Ropon) performed an unannounced license renewal and complaint inspection at Liberty Manor. (Adjudication, Findings of Fact (FOF) ¶ 1.) As of that date, Liberty Manor had twenty-nine residents and a regular status license. (FOF ¶ 2.) The Inspectors did not complete their complaint inspection on October 18, 2012 because they believed it was necessary for the local building inspector (Building Inspector) to visit Liberty Manor "to assess sanitary and plumbing conditions and address the complaint that sections of [Liberty Manor] were condemned." (FOF ¶ 4.) On January 10, 2013, the Building Inspector inspected Liberty Manor and Inspector Phillips completed his inspection based on the initial complaint, as well as investigating a second complaint regarding the building's condition. (FOF ¶ 5.)
After his inspections, Inspector Phillips issued a violation report, dated October 18, 2012/January 13, 2013 (2012-2013 Violation Report), citing Liberty Manor for fifteen violations of the Department's regulations, including five repeat violations from Liberty Manor's last inspection dated January 20, 2012., (FOF ¶ 6.) Petitioners did not dispute the findings of the 2012-2013 Violation Report "and submitted a proposed Plan of Correction" (Proposed POC). (FOF ¶ 7.) Inspector Phillips and Inspector Jon Kimberland (Inspector Kimberland) returned to Liberty Manor on February 4, 2013 to review the implementation of the Proposed POC, to offer technical assistance on the deficient aspects of the Proposed POC, and "to obtain [Liberty Manor's] acceptance of the Amended Plan of Correction prepared by the Department" (Amended POC), which Mr. Garvin accepted on that date. (FOF ¶¶ 8, 48.) While at Liberty Manor the Inspectors identified twenty additional violations, including repeat violations of the regulations cited in the 2012-2013 Violation Report, and issued another violation report (February 2013 Violation Report). (FOF ¶¶ 9-10.) Again, Petitioners did not dispute the noted violations. (FOF ¶ 9.)
The fifteen violations included: (1) "failure to maintain sanitary conditions as evidenced by the unsanitary condition[s] of window ledges, the pantry freezer, the men's bathroom, the women's bathroom and the strong odor of urine throughout the building and basement," a repeat violation of 55 Pa. Code § 2600.85(a); (2) "failure to maintain ceilings in good repair as evidenced by the condition of stained ceiling that had fallen and left to lay on the floor," a repeat violation of 55 Pa. Code § 2600.88; (3) "failure to maintain the grounds and building exterior in good repair as evidenced by the unmowed grass (6" to 10" in length) and broken glass covering a large area outside the boiler room entrance," 55 Pa. Code § 2600.100(a); (4) "failure to ensure that exterior walkways were free from ice," a repeat violation of 55 Pa. Code § 2600.100(b); (5) "failure to ensure that combustible materials are not located near heat sources as evidenced by various combustible materials located within a few feet of the furnaces in two separate locations," 55 Pa. Code § 2600.125(a); (6) "failure to include all required data in the medication administration record," 55 Pa. Code § 2600.187(a); (7) "failure to timely complete the resident assessment for resident #5," a repeat violation of 55 Pa. Code § 2600.225(c); and (8) "failure to address how a specific dietary need would be met in resident #5's support plan," a repeat violation of 55 Pa. Code § 2600.227(d). (FOF ¶ 6; Department Exs. C-2, C-3, C-4.)
All of the record items cited in this opinion are available in the Reproduced Record; however, because of inconsistent pagination, only certain items have page numbers and those numbers are cited where available.
Those twenty violations included: (1) "failure to secure all poisonous materials in their original, labeled containers," 55 Pa. Code § 2600.82(a); (2) "failure to maintain sanitary conditions as evidenced by[, among other things,] a large area of mold covering a basement wall, two pitchers filled with urine in [a] resident['s] bedroom, [and] two large areas of accumulated plaster and peeled paint from walls and ceiling," a repeat violation of 55 Pa. Code § 2600.85(a); and (3) "failure to ensure that all outside trash receptacles are covered as evidenced by an overflowing dumpster with the lids propped open by excess trash and construction debris laying on the ground around the dumpster," 55 Pa. Code § 2600.85(e). (FOF ¶ 10.)
b. Criminal allegations against Liberty Manor personnel arising in March 2013
On or about February 26, 2013, Lori Jarusinsky, a supervisor at Liberty Manor, "stole more than one hundred doses of Clonazepam from [a] resident . . . and divided the stolen medication with Liberty Manor Staff Supervisor Mary Cherny." (FOF ¶ 13.) On March 4, 2013, based on a complaint and a telephone call from the Liberty Borough Police Department (Liberty PD), Inspector Kimberland and two other Department employees went to the Liberty PD station and were advised that Mr. Garvin, Ms. Jarusinsky, and Ms. Cherny "would be arrested and charged [on] that date with various offenses related to mismanagement and theft of resident medications." (FOF ¶ 16.) On that same day, Liberty PD Officer Raymond Johnson (Officer Johnson) advised Mr. Garvin that he, Ms. Jarusinsky, and Ms. Cherny would be arrested on those charges. (FOF ¶¶ 17, 29.) In searching Mr. Garvin's office, "twenty 3-pound coffee cans each filled with hundreds of used syringes" were found. (FOF ¶ 18.) Approximately two hundred additional "3-pound coffee cans filled with hundreds of used syringes" and "bags filled with thousands of expired resident medications" were found in a locked area in Mr. Garvin's office, which he unlocked at Officer Johnson's request. (FOF ¶ 19.)
During this time, "Inspector Kimberland asked Mr. Garvin who would function at Liberty Manor as [the] Qualified Administrator should he be arrested" and Mr. Garvin did "not initially answer the question." (FOF ¶ 20.) Subsequently, Mr. Garvin indicated that Benjamin Noonan would act as administrator, but when asked to produce evidence that Mr. Noonan had all of the necessary qualifications, Mr. Garvin did not have those "documents on site and could not produce them." (FOF ¶¶ 21-22.) When questioned, Mr. Noonan indicated that his documents were at home, but neither Mr. Garvin nor Mr. Noonan "attempted to retrieve the necessary credentials." (FOF ¶¶ 23-24.) Based on Liberty PD's stated intent to arrest Mr. Garvin, Ms. Jarusinsky, and Ms. Cherny that day, thereby removing Liberty Manor's owner/administrator and the two supervisors who were "responsible for the operation of Liberty Manor for an unknown period of time," and the fact that Mr. Noonan's credentials were unavailable, "the Department determined that emergency circumstances existed pursuant to 55 Pa. Code [§] 20.37," which authorized the emergency removal of residents. (FOF ¶¶ 25, 28.) The Department prepared and issued, sometime after 2:00 p.m. on March 4, 2013, the ERO, which was "delivered to and served upon Mr. Garvin at Liberty Manor at approximately 4:00 p.m." (FOF ¶ 26.) The Department proceeded to obtain new placements for Liberty Manor's residents, all of whom were placed by 2:00 a.m. on March 5, 2013. (FOF ¶ 27.)
This regulation provides:
If the Department finds evidence of gross incompetence, negligence, [or] misconduct in operating the facility or agency, or mistreatment or abuse of clients, likely to constitute an immediate and serious danger to the life or health of the clients, the Department will take immediate action to remove the clients from the facility or agency. If physical obstruction is offered to prevent removal of the clients the Department will request law enforcement authorities to assist in the removal of the clients.55 Pa. Code § 20.37.
Although the Liberty PD indicated that Mr. Garvin would be arrested, he was never arrested but subsequently turned himself in to the authorities. (FOF ¶ 42; Hr'g Tr. at 622-23, R.R. at 311.) Mr. Garvin was charged with illegal activity, but the charges were eventually dropped. (FOF ¶ 15.) Ms. Jarusinsky and Ms. Cherny "pled guilty to a single count of possession of a controlled substance." (FOF ¶ 14.) "All evidence in the instant matter showed those allegations against [Mr. Garvin] to be false." (FOF ¶ 15.)
c. Department's Non-Renewal of Liberty Manor's PCH License
By letter dated March 8, 2013, the Department notified Petitioners that it was not renewing Liberty Manor's PCH license (Non-Renewal Notice). (FOF ¶ 12.) The Non-Renewal Notice advised the following:
On March 4, 2013, the Department . . . was notified of potential criminal activity at [Liberty Manor]. An investigation conducted by the Department on March 4, 2013 in response to this notification found that conditions at [Liberty Manor] constituted an immediate and serious danger to the health and safety of the residents. In accordance with 55 Pa. Code § 20.37, the Department removed residents on an emergency basis. As a result, the Department is NON-RENEWING your license to operate [Liberty Manor] due to GROSS INCOMPETENCE, NEGLIGENCE OR MISCONDUCT pursuant to [Section 1026(b)(4) of the Public Welfare Code (Code), 62 P.S. § 1026(b)(4) and 55 Pa. Code § 20.71[(a)](6) (relating to conditions for denial, nonrenewal or revocation).(Non-Renewal Notice (emphasis in original).) The Non-Renewal Notice advised Petitioners that Liberty Manor could not admit any new residents after March 8, 2013. The Non-Renewal Notice also informed Petitioners that they could appeal the Department's decision by filing a written appeal within ten days of March 8, 2013.
Additionally, as a result of the Department's licensing inspections on October 18, 2012, January 10, 2013 and February 4, 2013, of [Liberty Manor], the violations specified on the enclosed Violation Reports were found. Because of repeated and current violations [of] 55 Pa. Code Ch. 2600 (relating to Personal Care Homes), the Department is NOT RENEWING your license to operate . . . . The decision to NON-RENEW your license is made pursuant to 62 P.S. § 1026(b)(1) and 55 Pa. Code § 20.71(a)(2) (relating to conditions for denial, nonrenewal or revocation).
Act of June 13, 1967, P.L. 31, 62 P.S. § 1026(b)(4). Section 1026(b)(4) provides that "[t]he department shall refuse to issue a license or shall revoke a license for any of the following reasons . . . (4) Gross incompetence, negligence or misconduct in operating the facility." Id.
Section 1026(b)(1) provides that "[t]he department shall refuse to issue a license or shall revoke a license for any of the following reasons . . . (1) Violation of or non-compliance with the provisions of this act or of regulations pursuant thereto." 62 P.S. § 1026(b)(1).
d. Proceedings before the ALJ and Bureau
Petitioners appealed both the March 4, 2013 ERO and the March 8, 2013 Non-Renewal Notice. The appeals were consolidated and multiple hearings ensued before the ALJ. In pertinent part, the following individuals testified at the hearing describing, inter alia, the various inspections of Liberty Manor and the events of March 4, 2013: Officer Johnson; Mr. Garvin; Ms. Jarusinsky; Ms. Cherny; Walter Garner, a former employee of Liberty Manor; Mr. Noonan; Sheila Page, the Director of the Department's Western Human Services Licensing Office (Director Page); Inspectors Kimberland and Phillips; and Department employees Laurie Garrigan, Michael Marini, Jess Farley, Susan Pollock, and Lawrence Mazza, who were present at Liberty Manor on March 4, 2013.
Officer Johnson testified that he believed Liberty Manor was a nuisance, citing instances where Liberty Manor residents were found wandering Liberty Borough's streets and woods. (FOF ¶¶ 29-31.) Mr. Garvin, Ms. Jarusinsky, and Mr. Garner testified about instances in which Officer Johnson: indicated that he wanted Liberty Manor shut down; made derogatory comments regarding Liberty Manor's residents, particularly its African-American residents; and threatened Liberty Manor residents and personnel with arrest. (FOF ¶¶ 32-38.)
Other former employees of Liberty Manor similarly testified regarding the alleged bad relations between Mr. Garvin and Officer Johnson.
Inspector Phillips testified about the violations of the Department's regulations that he observed at Liberty Manor during his inspections in October 2012 and January and February 2013. (Hr'g Tr. at 104-51, R.R. at 119-31.) Inspector Kimberland described the events of March 4, 2013, as well as the violations of the Department's regulations that he observed at Liberty Manor during his inspection on February 4, 2013. (Hr'g Tr. at 200-44, 311-22, R.R. at 143-54, 201-04.) Inspector Kimberland specifically testified that he asked Mr. Garvin and Mr. Noonan to produce documents establishing Mr. Noonan's qualifications to act as Liberty Manor's administrator and they did not do so. (FOF ¶¶ 20-24.) Director Page stated that she believed the representations of Officer Johnson that, on March 4, 2013, Mr. Garvin was going to be arrested for stealing prescription medications, and submitted that information to her supervisors. (FOF ¶¶ 41, 43.) Director Page acknowledged that the theft allegations against Mr. Garvin ultimately were determined to be incorrect. (FOF ¶ 40.) However, Director Page, as well as other Department witnesses, indicated that the Department was unaware of any issues between the Liberty PD and Mr. Garvin or Liberty Manor and stated that "[t]hese issues in no way factored into the license non-renewal or emergency relocation determination." (FOF ¶ 44.) The Department's witnesses also testified that they did not request or receive any of Liberty Manor's personnel files. (FOF ¶ 45.)
The ALJ credited the testimony of all of the Department's witnesses, particularly that of Director Page and Inspector Kimberland. (FOF ¶ 48.) The ALJ found the testimony of Mr. Noonan and Mr. Garvin "not credible to the extent that it conflicts with the testimony presented by the Department." (FOF ¶¶ 49-50.) The ALJ found the testimony of Ms. Jarusinsky and Ms. Cherny to be credible in part, but "not credible where it conflict[ed] with [the] testimony presented by the Department." (FOF ¶ 51.)
The ALJ made no express credibility determination regarding Officer Johnson's testimony.
Based on the credited evidence, the ALJ concluded that the Department did not abuse its discretion when it decided not to renew Liberty Manor's PCH license due to its multiple violations of the Department's regulations, including numerous repeat violations. (Adjudication at 15.) The ALJ rejected Petitioners' argument that many of these violations were minor and, therefore, did not support the non-renewal of Liberty Manor's PCH license, reasoning that there is no legal authority distinguishing between "minor or technical vs. substantive regulatory violations." (Adjudication at 15.)
In regard to the ERO, the ALJ concluded that, given the facts and circumstances the Department knew at the time the ERO was issued, which was that Liberty Manor would be without a "qualified administrator should Mr. Garvin and the two Supervisors [(Ms. Jurisinsky and Ms. Cherny)] be arrested for theft and misuse of patient medications," the Department did not abuse its discretion in ordering the emergency removal of Liberty Manor's residents. (Adjudication at 16.) The ALJ recognized that "[h]indsight, of course, is 20/20," but the facts that Mr. Garvin would not be arrested for these charges and that Mr. Noonan may have been a qualified administrator were not known to the Department on March 4, 2013. (Adjudication at 16.) The ALJ noted that, "[h]ad Mr. Garvin supplied [the Department's officials] with any documentation whatsoever that would have helped them in [the] effort [to find a qualified administrator for Liberty Manor], they would have readily received it," which "would have saved the 29 residents the trauma of having to make an emergency relocation." (Adjudication at 16.)
For these reasons, the ALJ recommended denying Petitioners' appeals. The Bureau agreed, adopted the ALJ's Recommendation and Adjudication, and denied Petitioners' appeals. (Bureau Order.) Petitioners did not seek reconsideration from the Secretary of Public Welfare, but filed the instant petition for review of the Bureau's Order with this Court.
Our review of Bureau adjudications "is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are not supported by substantial evidence." Burroughs v. Department of Public Welfare, 606 A.2d 606, 607-08 (Pa. Cmwlth. 1992).
II. Petitioners' Petition for Review to this Court
Petitioners raise multiple challenges to the Bureau's Order in their Petition for Review to this Court. However, we first will consider the Department's Motion seeking to strike portions of Petitioners' brief.
a. The Department's request to strike portions of Petitioners' brief
In its Motion, the Department requests that this Court strike Petitioners' "third and final argument section of Petitioners' brief" because it refers "to the content of confidential settlement discussions" between Petitioners and the Department in an attempt to influence the Court in their favor. (Motion ¶¶ 7, 11, Wherefore Clause.) The Department contends that the inclusion of this information violates, inter alia, Pennsylvania Rule of Evidence 408 and Section 35.115 of the General Rules of Administrative Practice and Procedure (GRAPP), 1 Pa. Code § 35.115. (Motion ¶¶ 8-9.) In response, Petitioners assert that the Department's challenge to the inclusion of this material is an attempt to confuse the Court and hide the real issues related to the Department's violation of Petitioners' due process rights by acting on false information and its subsequent attempts to rectify its "grave error" during settlement negotiations. (Answer to Motion ¶¶ 7-8.) Petitioners argue that the Department's settlement offers reflect an admission that it acted improperly in removing Liberty Manor's residents and not renewing Liberty Manor's license. (Answer to Motion ¶¶ 7-8.)
The Department maintains that Petitioners' recitation of the settlement discussions is not only inadmissible, but also inaccurate. (Motion ¶¶ 7, 11.)
Pennsylvania Rule of Evidence 408(a) states, in relevant part, that
[e]vidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim.Pa. R.E. 408(a). We have applied Rule of Evidence 408 to administrative proceedings to hold that settlement offers are inadmissible. Shapiro v. State Board of Accountancy, 856 A.2d 864, 875 (Pa. Cmwlth. 2004). Additionally, Section 35.115 of the GRAPP provides that "[u]naccepted proposals of settlement or of adjustment or as to procedure to be followed and proposed stipulations not agreed to shall be privileged and are not admissible in evidence against a counsel or person claiming such privilege." 1 Pa. Code § 35.115. "'The general rule is that an offer to compromise is not admissible in evidence . . . as an admission that what is offered is rightfully due or that liability exists.'" Hooker v. State Farm Fire and Casualty Company, 880 A.2d 70, 85 (Pa. Cmwlth. 2005) (quoting Rochester Machine Corporation v. Mulach Steel Corporation, 449 A.2d 1366, 1368 (Pa. 1982)).
Petitioners do not assert that the information included in their brief was not a part of the settlement discussions it had with the Department. Rather, Petitioners maintain that they are attempting to provide this Court with evidence that the Department admitted that it acted erroneously. However, such information is not admissible for that purpose. 1 Pa. Code § 35.115; Pa. R.E. 408(a); Rochester Machine Corporation, 449 A.2d at 1368; Hooker, 880 A.2d at 85. Thus, this Court will strike the third and final argument section of Petitioners' brief and will not consider the references therein to the Department's alleged offers during settlement negotiations in this matter.
b. Whether the Department erred or abused its discretion when it issued the ERO on March 4, 2013
Petitioners first argue that the Department erred or abused its discretion in issuing the ERO on March 4, 2013 because it was based on the false allegations by Officer Johnson that Mr. Garvin was involved in the theft or mismanagement of resident medication and would be arrested on March 4, 2013. Petitioners contend that the Liberty PD, and Officer Johnson in particular, had an agenda to close Liberty Manor for discriminatory reasons. According to Petitioners, Officer Johnson used the allegations against Mr. Garvin, Ms. Jarusinsky, and Ms. Cherny as the opportunity to finally close Liberty Manor, and falsely advised the Department that these individuals would be arrested on March 4, 2013. Petitioners further assert that the timeline established in Department emails demonstrates that the Department made the decision to relocate Liberty Manor's residents by 1:58 p.m., less than one hour after the Department's officials arrived at Liberty Manor, and, therefore, the ERO could not have been based on the fact that there would not be a qualified administrator to manage Liberty Manor upon Mr. Garvin's arrest. Petitioners contend that the narrative the Department offers to justify issuing the ERO, i.e., the lack of a qualified administrator, is false and is an attempt to cover up the Department's improper reliance on the false allegations against Mr. Garvin. Petitioners also assert that the Department abused its discretion in determining that an emergency situation existed and issuing the ERO without independently investigating Mr. Garvin's alleged mismanagement and/or theft of resident medications.
The regulation at 55 Pa. Code § 20.37 authorizes the Department to remove residents from a licensed personal care home under certain circumstances and provides as follows:
If the Department finds evidence of gross incompetence, negligence, [or] misconduct in operating the facility or agency, or mistreatment or abuse of clients, likely to constitute an immediate and serious danger to the life or health of the clients, the Department will take immediate action to remove the clients from the facility or agency. If physical obstruction is offered to prevent removal of the clients the Department will request law enforcement authorities to assist in the removal of the clients.55 Pa. Code § 20.37. In Colonial Manor Personal Care Boarding Home v. Department of Public Welfare, 551 A.2d 347 (Pa. Cmwlth. 1988), the Department removed certain patients from a personal care home pursuant to this regulation because the home could not meet the health care needs of those patients who previously had resided in a nursing home operated by the same owner that had lost its medical assistance funding. Id. at 348-51. Immediately before their transfer and for the first time in years, the patients were certified as not needing immediate nursing care thereby allowing their transfer to the personal care home. Id. at 348-49. The Department's witness testified regarding her investigation of the appropriateness of the patients' recertification and transfer, noting that many of the patients required more care than that provided by the personal care home. Id. at 350-51. The personal care home challenged the emergency removal of these patients because the Department did not establish that an emergency situation existed and the removal was not performed "immediately." Id. We rejected the personal care home's arguments, holding that the Department's witness's testimony constituted substantial evidence to support the conclusion that an emergency situation existed and, therefore, the emergency removal was warranted. Id. at 351. This Court further stated that Section 20.37 required the Department to act "within a reasonable time in view of the particular facts and circumstances of the case under consideration." Id. at 352 (alteration omitted) (citation omitted). Thus, in reviewing the Department's ERO in this matter, we must determine whether there is substantial evidence to support the finding that an emergency situation existed and that the Department acted "within a reasonable time in view of the particular facts and circumstances of the case under consideration." Id. at 351-52 (alteration omitted) (citation omitted).
In considering these matters, we are mindful that, in appeals to the Bureau, the ALJ is the fact finder and assesses the credibility of the witnesses and the weight given to the evidence. Arcurio v. Department of Public Welfare, 557 A.2d 1171, 1173 (Pa. Cmwlth. 1989). Determinations of credibility and evidentiary weight will not be disturbed on appeal absent a capricious disregard of evidence. Grane Hospice Care, Inc. v. Department of Public Welfare, 72 A.3d 322, 328 (Pa. Cmwlth. 2013). We must affirm an adjudication "if it is in accordance with the law and supported by substantial evidence." Mihok v. Department of Public Welfare, 580 A.2d 905, 907 (Pa. Cmwlth. 1990). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Arcurio, 557 A.2d at 1173. The existence of conflicting evidence is insufficient to overturn factual findings supported by such substantial evidence. Mihok, 580 A.2d at 909. "[I]n evaluating whether findings of fact are supported by substantial evidence, this Court may not find facts or reweigh the evidence." Ehrhart v. Department of Public Welfare, 632 A.2d 5, 7 (Pa. Cmwlth. 1993).
Section 213 of the Code and the Department's regulations require that personal care homes have a qualified administrator who is responsible for overseeing the operations of the home, including supervision of the home's staff and assuring the well-being of the home's residents. See, e.g., 62 P.S. § 213 (requiring personal care homes to identify a qualified administrator, setting forth qualifications for the administrator, and authorizing the Department to promulgate regulations identifying additional qualifications); 55 Pa. Code § 20.13 (requiring a facility to "specify in writing at the time of application and reapplication the name of the person who is responsible for the daily operation of the facility"); and 55 Pa. Code § 2600.53 (setting forth the qualifications and responsibilities of an administrator, including being "responsible for the administration and management of the home . . . [and] the health, safety and well-being of the residents"). Section 2600.64(e) of the Department's regulations requires that "[a]n administrator who has successfully completed the training [identified in the regulations] shall provide written verification of successful completion to the Department's personal care home regional office." 55 Pa. Code § 2600.64(e).
Added by Section 2 of the Act of December 21, 1988, P.L. 1883, as amended.
The ALJ found that the Department established that the imminent arrest of Mr. Garvin, Ms. Jarusinsky, and Ms. Cherny "effectively removed [Liberty Manor's] owner/administrator and two supervisors who form[ed] the management structure responsible for the operation of Liberty Manor for an unknown period of time" and the failure of Mr. Garvin to produce Mr. Noonan's credentials created an emergency situation on March 4, 2013. (FOF ¶¶ 25, 28.) The record shows that no one other than Mr. Garvin, Ms. Jarusinsky, and Ms. Cherny had access to Liberty Manor's narcotic medication supply. (Hr'g Tr. at 316-17, 368, 428-30, 469-70, R.R. at 202-03, 215, 230-31, 241.) In fact, Mr. Garvin agreed with the Department's statements during the hearing that, if Mr. Garvin "and his other key staff were removed from the premises, there was nobody qualified to care for the residents," which "weighed in favor of the Department's judgment of determining emergency conditions because there was no way to ensure that the residents would be cared for appropriately." (Hr'g Tr. at 300, R.R. at 198.)
Moreover, the Department presented credible testimony establishing that: a personal care home must have a qualified administrator available at all times; Inspector Kimberland asked Mr. Garvin for documentation of Mr. Noonan's qualifications; no documentation was provided; and the Department's decision to issue the ERO was based on the lack of proof that a qualified administrator was available to oversee the care of Liberty Manor's residents upon Mr. Garvin's anticipated arrest. (Hr'g Tr. at 234-38, 306-07, 313-17, 334-35, 338-40, 367-73, 375, R.R. at 152-53, 200, 202-03, 207-08, 215-17.) Notably, Inspector Kimberland indicated that had evidence of Mr. Noonan's qualifications been provided, it was likely that Mr. Noonan would have been accepted as an administrator and the ERO might not have been necessary. (Hr'g Tr. at 314-15, R.R. at 202.) Similarly, Inspector Kimberland and Director Page explained that, in other situations where an administrator had been arrested, the Department did not issue an ERO removing the residents because it timely received confirmation that another qualified administrator was available to oversee the facility. (Hr'g Tr. at 315-16, 358-60, 375-78, R.R. at 202, 213, 217-18.)
In asserting that the Department falsely relied on the lack of a qualified administrator as its reason for removing Liberty Manor's residents, Petitioners request this Court to reweigh the evidence to come to a different conclusion, which this Court may not do. Grane Hospice Care, Inc. v. Department of Public Welfare, 72 A.3d 322, 328 (Pa. Cmwlth. 2013); Ehrhart v. Department of Public Welfare, 632 A.2d 5, 7 (Pa. Cmwlth. 1993). Petitioners focus on the facts that the allegations against Mr. Garvin were ultimately determined to be false, the charges against him were dropped, and he was not arrested on March 4, 2013. However, reviewing the facts in this matter in hindsight, as Petitioners ask this Court to do, does not provide an accurate representation of the situation the Department was presented with when it made its decision to declare an emergency situation and remove Liberty Manor's residents.
Petitioners do not point out that an arrest warrant for Mr. Garvin was ultimately issued and he voluntarily turned himself in to the authorities. (Hr'g Tr. at 440, 623, R.R. at 233, 311.)
As of the afternoon on March 4, 2013, the Department knew only that Mr. Garvin, the only known qualified administrator for Liberty Manor, was going to be arrested that day on charges associated with theft or misuse of resident medications and could not provide the Department with documentation that another qualified administrator was available to oversee Liberty Manor's ongoing operations, as required by the Code and the Department's regulations. The circumstances also included the knowledge that the two other individuals who had access to Liberty Manor's narcotic medications were also going to be arrested that day. The Department was unaware of the purported tension between Petitioners, the Liberty PD, and Officer Johnson in particular. Add to these facts Director Page's testimony indicating that emergency relocations are complicated, labor intensive processes and that time is of the essence when attempting to properly place residents while minimizing the stress to the residents. (Hr'g Tr. at 348, R.R. at 210.) Reviewing, as we must, this evidence and the inferences reasonably drawn therefrom in the light most favorable to the party that prevailed below, Western Center, Department of Public Welfare v. Hoon, 598 A.2d 1042, 1045 (Pa. Cmwlth. 1991), we conclude that there is substantial evidence in the record to support the conclusion that an emergency situation existed on March 4, 2013 and, therefore, the emergency removal was warranted, Colonial Manor, 551 A.2d at 351.
Moreover, given what is involved in implementing an ERO, it was not unreasonable for the Department to begin the process of approving an ERO within a short period of time of receiving reports regarding what was occurring at Liberty Manor. Had Petitioners been able to provide the Department with the required documentation establishing Mr. Noonan's administrator qualifications at some time prior to 4:00 p.m., which was when Inspector Kimberland served the ERO on Mr. Garvin, the Department may not have had to implement the ERO. "[I]n view of the particular facts and circumstances of the case under consideration," we conclude that the Department acted reasonably and did not err or abuse its discretion when it issued and implemented the ERO under these circumstances. Id. at 352.
c. Whether the Department's actions of March 4 and 8, 2013 violated Petitioners' Due Process rights under the United States and Pennsylvania Constitutions
Petitioners next assert that the Department violated their due process rights to notice and an opportunity to be heard when it issued the ERO without providing Mr. Garvin the chance to respond to the allegations regarding his participation in the alleged theft and mismanagement of the residents' medications. Petitioners further point out that, because the information regarding Mr. Garvin's impending arrest was incorrect, he remained available to act as Liberty Manor's administrator at all times, making it unnecessary for the Department to have issued the ERO in the first instance. Moreover, Petitioners assert that it became clear from the ALJ hearings that Mr. Noonan was a qualified administrator and the Department should have discovered this fact by independently investigating Liberty Manor's personnel records. Finally, Petitioners reiterate that the Department's justification for issuing the ERO based on the lack of a qualified administrator was created after the fact.
"[T]he essential elements of due process are notice and an opportunity to be heard." Goslin v. State Board of Medicine, 949 A.2d 372, 376 (Pa. Cmwlth. 2008). "The issue of whether a party received due process must be examined in relation to the particular circumstances of each case." Society Hill Civic Association v. Philadelphia Zoning Board of Adjustment, 42 A.3d 1178, 1190 (Pa. Cmwlth. 2012). "Notice is the most basic requirement of due process," and "should be reasonably calculated to inform interested parties of the pending action." Id. "The form of the notice required depends on what is reasonable, considering the interests at stake and the burdens of providing notice." Id.
Initially, we note that there is substantial evidence in the record to support the finding that the Department issued the ERO based on the lack of a qualified administrator to operate Liberty Manor upon Mr. Garvin's arrest, which the Department had been advised was imminent, not on the allegations that Mr. Garvin was involved in the theft and mismanagement of resident medication. The credibility determinations and the weight given to the evidence in this matter are not subject to this Court's appellate review. Grane Hospice Care, Inc., 72 A.3d at 328; Ehrhart, 632 A.2d at 7. Accordingly, Mr. Garvin's alleged inability to respond to the theft/mismanagement allegations on March 4, 2013 had no bearing on the Department's decision to issue the ERO and there was no violation of Petitioners' due process rights on this basis.
As observed above, the level of due process required depends upon "the particular circumstances of each case" and must be reasonable when considering the interests and burdens at stake. Society Hill Civic Association, 42 A.3d at 1190. Here, Inspector Kimberland credibly testified that he repeatedly asked Mr. Garvin and Mr. Noonan to provide the Department with documentation of Mr. Noonan's qualifications to ensure that Liberty Manor would be properly staffed and that he received no such documentation. Inspector Kimberland indicated that Mr. Garvin had several hours to produce that documentation before Mr. Garvin was served with the ERO at 4:00 p.m. (Hr'g Tr. at 306-07, 327, R.R. at 200, 205.) Despite representations that Mr. Noonan had the necessary proof at home, neither Mr. Noonan nor Mr. Garvin attempted to retrieve the documentation. (FOF ¶¶ 23-24.) Inspector Kimberland testified that, after requesting proof of Mr. Noonan's qualifications and not receiving them, Director Page directed him "[t]o initiate the closure of the home, [and the] emergency relocation of the residents," and he verbally informed Mr. Garvin that a closure order was being issued prior to Inspector Kimberland receiving the official ERO. (Hr'g Tr. at 238-41, R.R. at 153.)
Now, Petitioners maintain that the necessary documentation of Mr. Noonan's qualifications was in his personnel file and should have been independently discovered by the Department. However, Mr. Garvin acknowledged that he did not think about Mr. Noonan's personnel file when he was asked for proof of Mr. Noonan's qualifications, and Mr. Garvin's testimony that the Department collected and reviewed Liberty Manor's personnel files on March 4, 2013 was not credited in light of the Department's witnesses' contrary testimony. (FOF ¶¶ 45, 48, 50; Hr'g Tr. at 449, 451, R.R. at 236.) Moreover, the Department's regulations place the burden on the administrator to provide his or her qualifications to the Department and not on the Department to search for evidence of a purported administrator's qualifications. 55 Pa. Code § 2600.64(e). The Department gave Mr. Garvin the opportunity to provide the necessary documentation that would have supported Mr. Garvin's claim that Mr. Noonan had the qualifications necessary to act as Liberty Manor's administrator, who could oversee the ongoing operations at Liberty Manor, and when Mr. Garvin did not provide that documentation it was not a violation of due process for the Department to issue the ERO.
d. Whether the Department's non-renewal of Liberty Manor's license based on the identified violations was erroneous because Liberty Manor should have received a provisional license
Petitioners also assert that the Department cannot base the non-renewal of Liberty Manor's license on March 8, 2013 on the violations identified in the 2012-2013 Violation Report because Petitioners did not receive that report until February 2013. Petitioners assert that Liberty Manor was entitled to a provisional license rather than having its license not renewed.
Petitioners also argue that they must have been in substantial compliance with the Code and the Department's regulations, citing information this Court has struck from the record, i.e., Exhibit C and references to alleged settlement offers made by the Department. Because this information is struck from Petitioners' brief, we will not consider it in addressing Petitioners' argument.
Petitioners do not dispute that violations of the Department's regulations occurred, or that Liberty Manor had a number of repeat violations each time the facility was inspected by Department inspectors. Rather, Petitioners appear to assert an entitlement to a provisional license and that the non-renewal of Liberty Manor's license, based on these violations, was impermissible because of when Petitioners received the 2012-2013 Violation Report. We observe, however, that although Petitioners assert in their brief to this Court that they did not receive the 2012-2013 Violation Report until sometime in February 2013, (Petitioners' Br. at 28), the record reveals that Mr. Garvin had prepared and signed the Proposed POC in response to the 2012-2013 Violation Report in January 2013, which the Department's regional office received on January 28, 2013. (2012-2013 Violation Report with Proposed POC, attached to Non-Renewal Notice.) Mr. Garvin, Inspector Kimberland, and Inspector Phillips discussed this Proposed POC on February 4, 2013, and Mr. Garvin accepted the Amended POC on that date. (FOF ¶ 8.) Thus, we conclude this is not a reason to reverse the Bureau's Order.
Significantly, as found by the ALJ and adopted by the Bureau, Mr. Garvin did not dispute the violations identified in the 2012-2013 Violation Report and the February 2013 Violation Report, including the repeat violations from the Department's previous January 2012 inspection. (FOF ¶¶ 7, 9.) Director Page testified that she recommended the non-renewal of Liberty Manor's PCH license based on the multiple serious violations, including the numerous repeat violations, that were identified in the 2012-2013 Violation Report and the February 2013 Violation Report. (Hr'g Tr. at 342, R.R. at 209.) Director Page noted that "the Department takes repeat violations serious[ly]." (Hr'g Tr. at 342, R.R. at 209.) Pursuant to Section 1026(b)(1) of the Code and Section 20.71(a)(2) of the Department's regulations, violations of either the Code or the regulations can result in the non-renewal of a license. 62 P.S. § 1026(b)(1); 55 Pa. Code § 20.71(a)(2). Although a licensee may be issued a provisional license if the licensee is in substantial compliance with the Code and the regulations, this Court has held that where there are repeat violations of the same statutory or regulatory provisions in multiple inspections, the licensee does not establish substantial compliance and is not entitled to a provisional license pursuant to Section 1008 of the Code and 55 Pa. Code § 20.54(a). Burroughs v. Department of Public Welfare, 606 A.2d 606, 608 (Pa. Cmwlth. 1992).
Section 1008 of the Code states that the Department "shall issue a provisional license" where substantial compliance is achieved. 62 P.S. § 1008. The regulation at 55 Pa. Code § 20.54(a) provides that "[a] provisional certificate of compliance is issued if the facility or agency is in substantial, but not complete, compliance with applicable statutes, ordinances, and regulations." Id. This Court has held that the mandatory grant of a provisional license for substantial compliance is only available, however, for applicants, not for regular license holders. KC Equities v. Department of Public Welfare, 95 A.3d 918, 931 (Pa. Cmwlth. 2014). --------
Finally, even though Petitioners agreed to the Amended POC, thereby allowing Petitioners to attempt to correct the identified violations, we have held that the Department is not required to consider corrective action before revoking or refusing to renew a license. KC Equities v. Department of Public Welfare, 95 A.3d 918, 930 (Pa. Cmwlth. 2014); Altagracia De Pena Family Day Care v. Department of Public Welfare, 943 A.2d 353, 356 (Pa. Cmwlth. 2007). "[W]hile laudable, subsequent corrective actions do not erase the fact that a licensee was in violation of regulations on the date of [the] inspection." KC Equities, 95 A.3d at 930. "Corrective action taken after a regulatory violation is irrelevant for purposes of determining whether a violation occurred." Altagracia, 943 A.2d at 356. Because the record supports the ALJ's finding that Liberty Manor had multiple regulatory violations, the Bureau did not err in concluding that non-renewal of Liberty Manor's license was warranted. Id.
For the above reasons, we affirm the Bureau's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 17, 2015, the Order of the Department of Public Welfare, Bureau of Hearings and Appeals, in the above-captioned matter is hereby AFFIRMED. Respondent's Motion to Strike Brief in Part is hereby GRANTED, and the third and final argument section of Petitioners' Brief is stricken.
/s/ _________
RENÉE COHN JUBELIRER, Judge