The Summit Academy v. DHS ( 2015 )


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  •               IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    The Summit Academy,                      :
    Petitioner               :
    :   No. 257 C.D. 2015
    v.                           :
    :   Submitted: September 4, 2015
    Department of Human Services,            :
    Respondent              :
    BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                     FILED: December 7, 2015
    The Summit Academy (Facility), a private residential treatment center
    for dependent and delinquent youth, petitions for review of the February 2, 2015 final
    order of the Department of Human Services (Department), Bureau of Hearings and
    Appeals (Bureau), adopting the recommendation of an Administrative Law Judge
    (ALJ) that the Facility’s appeal from a license inspection summary (LIS) should be
    dismissed for lack of jurisdiction.     On appeal, the Facility contends that the
    Department’s regulations and procedures governing the LIS violate due process.
    Background
    The facts and procedural history of this case are as follows. On October
    17, 2014, a representative of the Department conducted an on-site inspection of the
    Facility. At the conclusion of the inspection, the representative completed an LIS
    listing two violations. The first violation concerned diagnosed injuries that a resident
    sustained while being manually restrained by Facility employees.               The second
    violation involved the Facility’s inaccurate records as to the time-frame in which the
    resident was restrained. (Reproduced Record (R.R.) at 3a-6a.)
    More specifically, the LIS named the applicable regulations and
    described the violations as follows:
    1. Regulation 
    55 Pa. Code §3800
    3800.32(b) – A child may not be abused, mistreated,
    threatened, harassed or subject to corporal punishment.
    2a. Description of Violation
    Staff Member A manually restrained resident #1 on 10/8/14
    around 8:30 p.m. on the facility’s third floor catwalk
    resulting in the resident’s diagnoses of a closed rib fracture,
    a left wrist injury, and a facial contusion.
    *    *     *
    1. Regulation 
    55 Pa. Code §3800
    3800.213 – A record of each use of a restrictive procedure,
    including the emergency use of a restrictive procedure, shall
    be kept and shall include the following:
    (2) The date and time the procedure was used . . .
    (6) The duration of the procedure . . .
    2a. Description of Violation
    Resident #1 was manually restrained on 10/8/14 in the
    cafeteria and minutes later was manually restrained on the
    third floor catwalk. The restrictive procedure record for the
    manual restraint in the cafeteria indicated that the restraint
    began at 8:35 p.m. and ended at 8:40 p.m. and the
    restrictive procedure record for the manual restraint on the
    2
    third floor catwalk indicated that the restraint began at 8:30
    p.m. and ended at 8:35 p.m. The restrictive procedure
    records do not accurately indicate the time of the manual
    restraints.
    (R.R. at 4a-5a.)
    On November 26, 2014, the Department sent the Facility a letter with the
    LIS enclosed. In pertinent part, the letter stated:
    The Department requires that you submit an acceptable plan
    to correct noncompliant items pursuant to 
    55 Pa. Code §20.52
     (relating to plan of correction). You should begin to
    implement your plan immediately upon submission. The
    Department will notify you if the plan you submit is not
    acceptable and must be changed.
    In order to submit an acceptable plan of correction, you
    must complete Section 3 of the attached [LIS], by stating
    the actions you will take to correct each of the violations.
    Your plan of correction must immediately correct the
    specific issue cited, as well as include an ongoing, step-by-
    step plan to assure continued compliance with the
    regulation over a substantial period of time. Your plan of
    correction for each violation should include: what specific
    change will be made, who will make the change, when will
    the change be made, how will the change be made, what
    system have you implemented to make sure that the same
    violation will not occur again and what training will be
    provided to your staff. Send any supporting documentation
    to verify compliance of any corrected violation. If you
    believe any violation is incorrect, you may say that in
    your comments under Section 3 but you still must
    include a plan to reach and maintain compliance. Sign
    and date the bottom of each page of the [LIS].
    Return the attached [LIS] within 10 calendar days of the
    mailing date of this letter. Your license to operate the
    above facility may be revoked if the [LIS] is not received
    within the required time period. . . .
    3
    I am available to explain any statements on the attached
    form and to assist you in the development of an acceptable
    plan of correction. Thank you for your cooperation.
    (R.R. at 1a-2a) (emphasis supplied).
    On December 4, 2014, the Facility filed an appeal from the November
    26, 2014 letter, asserting that the violations listed in the LIS were “unsubstantiated”
    and could be used “in future enforcement actions.” (R.R. at 11a.) Specifically, the
    Facility contended that the Department’s representative relied upon erroneous
    information, and it asserted that a proper investigation would have revealed that the
    resident hurt himself when he slipped and fell on a wet floor and that the length of
    time the resident was restrained was recorded accurately. To support its contentions,
    the Facility attached the affidavits of two of its employees. (R.R. at 9a-23a.) The
    Facility further asserted that the Department’s failure to provide it “an avenue to
    appeal these improper and unsubstantiated violations constitutes a violation of [the
    Facility’s] due process rights.” (R.R. at 11a.)
    On December 12, 2014, the Department acknowledged the Facility’s
    request for appeal and forwarded it to the Bureau. The ALJ issued a rule to show
    cause as to why the appeal should not be dismissed for want of jurisdiction, and both
    the Facility and the Department filed responses. (R.R. at 24a-25a.)
    In its response, the Facility contended that the November 26, 2014 letter
    was an adjudication because the LIS could be used to take adverse action against the
    Facility’s certificate of compliance; the Facility would have no recourse to challenge
    the findings and violations in the LIS; and the failure to permit an appeal and hearing
    violates the Facility’s right to procedural due process.        In its response, the
    Department argued that the LIS did not impose any sanction against the Facility or
    immediately jeopardize its certificate of compliance; the Facility would have the right
    to appeal in the event the Department would take action in the future based upon the
    4
    LIS; and case law establishes that notice of a regulatory violation (absent a sanction)
    does not constitute an adjudication. (R.R. at 26a-35a.)
    Upon consideration of the parties’ submissions, the ALJ recommended
    that the Facility’s appeal be dismissed for failing to state a claim for which the
    Bureau can grant relief. (R.R. at 37a.) On February 2, 2015, the Bureau issued an
    adjudication and order upholding the ALJ.          In doing so, the Bureau made the
    following findings of fact:
    1.    [The Facility] is a residential juvenile facility.
    2.     On November 26, 2014, the Department mailed a
    letter to [the Facility] which included a [LIS] that cited
    violations of regulations relating to child residential and day
    treatment facilities.
    3.      The November 26, 2014 letter required [the Facility]
    to submit a plan of correction to address the cited violations
    within ten (10) calendar days of the mailing date of the
    letter.
    4.    The November 26, 2014 letter stated that failure to
    submit a timely plan of correction may result in the
    revocation of [the Facility’s] license to operate.
    5.     The November 26, 2014 letter stated, “If you believe
    any violation is incorrect, you may say that in your
    comments under Section 3 but you must still include a plan
    to reach and maintain compliance.”
    6.    The November 26, 2014 letter did not propose to
    deny, not renew, or revoke [the Facility’s] certificate of
    compliance. It did not issue a provisional license, reduce
    the maximum capacity of the facility or deny a request to
    increase the maximum capacity of the facility.
    7.    On December 12, 2014, the Bureau received a
    request for hearing from [the Facility] to dispute the [LIS]
    5
    findings because these findings may be used by the
    Department in future enforcement actions.
    8.     On December 19, 2014, the Bureau issued an order to
    show cause why [the Facility’s] appeal should not be
    dismissed as it appears the Bureau does not have
    jurisdiction.
    9.    On January 16, 2015, [the Facility] responded to the
    Bureau’s order but the response failed to set forth a cause of
    action for which the Bureau can grant relief.
    (Findings of Fact (F.F.) at Nos. 1-9.)
    From these facts, the Bureau determined that it lacked jurisdiction to
    entertain the Facility’s appeal pursuant to the regulation at 
    55 Pa. Code §20.81
    , which
    grants the right to appeal only when the Department denies, revokes, or decides not to
    renew a certificate of compliance and for other reasons that are not pertinent to this
    appeal.1 The Bureau stated that the November 26, 2014 letter did not revoke the
    1
    The regulation provides:
    § 20.81. Decisions that may be appealed.
    The legal entity has the right to appeal any of the following:
    (1) The denial of a certificate of compliance.
    (2) The nonrenewal of a certificate of compliance.
    (3) The revocation of a certificate of compliance.
    (4) The issuance of a provisional certificate of compliance.
    (5) The length of time for which a provisional certificate of
    compliance is issued.
    (6) The reduction in the maximum capacity of the facility or agency.
    (Footnote continued on next page…)
    6
    Facility’s certificate of compliance and noted that it advised the Facility of its right to
    explain why it believes the violations are incorrect. Ultimately, the Board concluded
    that it did not possess jurisdiction to overturn findings in a LIS, but suggested that the
    Facility would be able to challenge the findings if the Department would decide, in
    the future, to take adverse action against the Facility’s certificate of compliance.
    (Bureau’s decision at 2-3.)
    Discussion
    On appeal to this Court,2 the Facility argues that the violations listed in
    the LIS are baseless and that it should not have to submit a plan of correction. The
    Facility concedes that 
    55 Pa. Code §20.81
     does not grant it the right to appeal, but
    argues that the regulation, as applied, violates its due process rights because the
    Facility is not afforded an appeal and hearing to contest the violations in the LIS.
    For support, the Facility cites Department of Transportation, Bureau of Driver
    Licensing v. Clayton, 
    684 A.2d 1060
     (Pa. 1996), and claims that the effect of an LIS
    is to create an impermissible, irrebutable presumption that it committed the
    (continued…)
    (7) The denial of an increase in the maximum capacity of the facility
    or agency.
    
    55 Pa. Code §20.81
    .
    2
    Our scope of review is limited to determining whether constitutional rights were violated,
    whether the adjudication is in accordance with the law, and whether necessary findings of fact are
    supported by substantial evidence. Nancy Hadlock’s Family Child Care Home v. Department of
    Public Welfare, 
    103 A.3d 851
    , 857 n.12 (Pa. Cmwlth. 2014).
    7
    violations.3 Noting that the LIS is made available to the public on the Department’s
    website,4 the Facility also argues that a Pennsylvania citizen has a fundamental right
    to protect the individual’s reputation and that this right cannot be deprived without
    due process of law. In this regard, the Facility relies primarily on our decision in
    Pennsylvania Bar Association v. Commonwealth, 
    607 A.2d 850
     (Pa. Cmwlth. 1992).
    The Regulations
    The regulations at 
    55 Pa. Code §§3800.1
    —.312 govern child residential
    facilities in this Commonwealth, such as the Facility. The purpose of the regulations
    “is to protect the health, safety and well-being of children receiving care in a child
    residential facility through the formulation, application and enforcement of minimum
    licensing requirements.” 
    55 Pa. Code §§3800.1
    . In general, the regulations cover a
    multitude of subjects; for instance, child rights, staff training, the safety of the
    facility, child and staff health, transportation, medication, restrictive procedures, and
    secure detention. See generally 
    55 Pa. Code §§3800.1
    —.312. As a licensing matter,
    a child residential facility must obtain and maintain a certificate of compliance from
    the Department. See 
    55 Pa. Code §3800.11
    .
    The Department’s regulations define a “certificate of compliance” as a
    “document issued to a legal entity permitting it to operate a specific type of facility or
    3
    In Clayton, a regulation provided for the revocation of an individual’s driving privileges
    for one year upon the occurrence of an epileptic seizure. Our Supreme Court declared that the
    regulation was unconstitutional as violating due process. Significantly, the aggrieved individual
    had no method of rebutting the regulation’s presumption that the seizure rendered him unfit to
    drive.
    4
    See http://services.dpw.state.pa.us/dhs/ViolationReport.aspx?reportid=47204&fac=THE
    SUMMIT ACADEMY
    8
    agency, at a given location, for a specified period of time, and according to
    appropriate Departmental program licensure or approval regulations.” 
    55 Pa. Code §20.4
    .   To ensure compliance with the regulations, an authorized agent of the
    Department can conduct a pre-announced annual inspection and unannounced on-site
    inspections, and can investigate complaints made against a facility. 
    55 Pa. Code §§20.31
    —.33. If the agent observes items of noncompliance, an LIS will be issued to
    the facility, and, in response, the facility “shall submit an acceptable written plan to
    correct each noncompliance item and shall establish an acceptable period of time to
    correct these items.” 
    55 Pa. Code §20.52
    . The Department may deny, refuse to
    renew, or revoke a certificate of compliance when a facility fails “to submit an
    acceptable plan to correct noncompliance items.” 
    55 Pa. Code §20.71
    (3). If the
    Department decides to revoke or not renew a certificate of compliance, a facility has
    the right to an appeal and evidentiary hearing before an ALJ and the Bureau. 
    55 Pa. Code §§20.81
    (2)-(3); 20.82; 3800.12. See City of Philadelphia, Board of License and
    Inspection Review v. 2600 Lewis, Inc., 
    661 A.2d 20
    , 22 (Pa. Cmwlth. 1995).
    Due Process
    The Fourteenth Amendment to the United States Constitution provides,
    in relevant part, that no “State [shall] deprive any person of life, liberty, or property,
    without due process of law.” U.S. Const. amend. XIV, §1. To maintain a due
    process challenge, a party must initially establish the deprivation of a protected
    property or liberty interest. Miller v. Workers’ Compensation Appeal Board (Pavex,
    Inc.), 
    918 A.2d 809
    , 812 (Pa. Cmwlth. 2007).
    9
    Our Supreme Court “has recognized that the right to reputation, although
    absent from the federal constitution, is a fundamental right under the Pennsylvania
    Constitution.” In the Interest of J.B., 
    107 A.3d 1
    , 16 (Pa. 2014).
    [I]n Pennsylvania, reputation is an interest that is
    recognized and protected by our highest state law: our
    Constitution. Sections 1 and 11 of Article I[5] make explicit
    reference to ‘reputation,’ providing the basis for this Court
    to regard it as a fundamental interest which cannot be
    abridged without compliance with constitutional standards
    of due process. . . .
    R. v. Department of Public Welfare, 
    636 A.2d 142
    , 149 (Pa. 1994).
    In Pennsylvania Bar Association, this Court invalidated, on procedural
    due process grounds, section 1822(b)(5) of the Vehicle Code, 75 Pa.C.S. §1822(b)(5),
    which required insurers to report suspected fraudulent claims to a statutorily created
    Motor Vehicle Fraud Index Bureau, along with “[i]dentification of attorneys
    representing claimants” in such claims.               
    607 A.2d at 852
    .         In that case, the
    Pennsylvania Bar Association commenced suit in our original jurisdiction, asserting,
    among other things, that maintaining a list of the attorneys’ names would operate to
    damage their reputations in violation of their constitutional right to protect their
    reputations.
    Citing Wolfe v. Beal, 
    384 A.2d 1187
    , 1189 (Pa. 1978), this Court in
    Pennsylvania Bar Association noted that our Supreme Court had already recognized
    5
    Pa. Const. art. I, §1 (“All men are born equally free and independent, and have certain
    inherent and indefeasible rights, among which are those of enjoying and defending life and liberty,
    of acquiring, possessing and protecting property and reputation, and of pursuing their own
    happiness.”); Pa. Const. art. I, §11 (“All courts shall be open; and every man for an injury done him
    in his lands, goods, person or reputation shall have remedy by due course of law, and right and
    justice administered without sale, denial or delay. Suits may be brought against the Commonwealth
    in such manner, in such courts and in such cases as the Legislature may by law direct.”).
    10
    that the existence of government records, specifically records of an individual’s
    illegal commitment to a state mental hospital, posed a “threat” to that individual’s
    reputation.   
    607 A.2d at 853-54
    .       We then agreed with the Pennsylvania Bar
    Association “that the maintenance of a list which includes the names of attorneys
    representing insurance claimants suspected of fraud . . . poses a serious threat to the
    reputations of [the attorneys], as discussed in Wolfe.” 
    607 A.2d at 856
    . After
    determining that the attorneys were entitled to protection under the due process
    clause, we concluded that the statute’s failure to provide notice to the attorneys that
    they were being placed on the list rendered the statute unconstitutional:
    Yet, disturbingly, the reporting requirements in 75 Pa.C.S.
    §1822(b) pertaining to the anti-fraud reports provide for no
    notification to the attorneys when their names are listed in
    the Index Bureau’s record banks.
    The Supreme Court of the United States has recognized that
    notice is the most basic requirement of due process. Notice
    is necessary both to inform the interested parties of the
    pending action and to provide an opportunity to present
    objections. . . . An attorney may appear on the list, and be
    subject to negative stigmatization, because the insurer has a
    suspicion about the client due to previous actions unknown
    to the attorney. By the time the listing is brought to the
    attorney’s attention, the damage to the attorney’s reputation
    may have been done, and he or she may have lost the
    opportunity to be heard at a meaningful time and in a
    meaningful manner . . . .
    We find Section 1822 to be unconstitutional inasmuch as it
    requires the maintenance of records containing the names of
    attorneys who represent insurance claimants suspected of
    fraud because such a scheme ignores the basic due process
    requirement of notice, and permits the compilation of secret
    records that tend to unfairly stigmatize an attorney who is
    reported to the Index Bureau without any opportunity for
    the attorney to raise an objection to such listing, or even
    become informed that such a listing will occur.
    11
    
    607 A.2d at 856-57
     (citations omitted).
    Per Pennsylvania Bar Association, if an individual’s liberty interest in
    reputation is sufficiently “threatened,” the individual possessing the interest is
    entitled to some method of due process. See 
    id.
     More specifically, procedural due
    process calls for protections tailored to the demands of the particular situation,
    making it necessary to balance competing interests. R., 636 A.2d at 146. The three-
    part inquiry set forth in Mathews v. Eldridge, 
    424 U.S. 319
     (1976), provides guidance
    in this regard. The Mathews analysis requires a court to consider the private interest
    affected by the official action; the risk of an erroneous deprivation of that interest
    through the procedures used, as well as the probable value of additional safeguards;
    and the Government’s interest, including the administrative burden that additional
    procedural requirements would impose. R., 636 A.2d at 146.
    The United States Supreme Court has stated: “when prompt
    postdeprivation review is available for correction of administrative error, we have
    generally required no more than that the predeprivation procedures used be designed
    to provide a reasonably reliable basis for concluding that the facts justifying the
    official action are as a responsible governmental official warrants them to be.”
    Mackey v. Montrym, 
    443 U.S. 1
    , 13 (1979). The High Court has also “recognized, on
    many occasions, that where a State must act quickly, or where it would be impractical
    to provide predeprivation process, postdeprivation process satisfies the requirements
    of the Due Process Clause.” Gilbert v. Homar, 
    520 U.S. 924
    , 930 (1997). See
    Zinermon v. Burch, 
    494 U.S. 113
    , 132 (1990) (stating that “in situations where a
    predeprivation hearing is unduly burdensome in proportion to the liberty interest at
    stake . . . post-deprivation remedies might satisfy due process.”). The United States
    Court of Appeals for the Third Circuit has further explained that “the availability and
    12
    validity of any pre-deprivation process must be analyzed with reference to the context
    of the alleged violation and the adequacy of available post-deprivation procedures.”
    Reilly v. City of Atlantic City, 
    532 F.3d 216
    , 236 (3d Cir. 2008).
    For purposes of this appeal, we assume that publication of the LIS and
    the violations on the internet for the public to view has a sufficient and adverse effect
    or “threat” on the Facility’s reputational interests to implicate due process concerns.
    See Pennsylvania Bar Association, 
    607 A.2d at 856-57
    .6                      Nonetheless, the LIS
    contains sufficient and detailed notice of the violations, and before the LIS is posted
    on the internet, the Department provides the Facility with the opportunity to protect
    its reputational interests.      Particularly, the Facility can contest the violations by
    making comments in section 3 of the LIS, which is also posted on the internet and
    made available to the public. (F.F. at No. 5; R.R. at 1a-2a.) This predeprivational
    process is much more extensive than that in Pennsylvania Bar Association, where the
    attorneys were not even provided notice.
    Because the Facility is afforded adequate notice and an opportunity to
    respond in writing, Pennsylvania Bar Association is distinguishable and is not
    dispositive authority on the present issue. Moreover, this Court in Pennsylvania Bar
    Association was primarily concerned that the lack of notice deprived the attorneys of
    the opportunity “to raise an objection to [the] listing.” 
    607 A.2d at 857
    . For the
    reasons discussed below, we conclude that at this stage of the regulatory procedure,
    where the Facility’s certificate of compliance is not being revoked (i.e., the
    predeprivation stage), the opportunity to contest the violations in writing, in and of
    6
    We also assume, without deciding, that the Facility, as a business entity, possesses the right
    to reputation in the same manner that an individual citizen does.
    13
    itself, is sufficient to preserve the Facility’s right of reputation and minimize any
    “threat” to its reputation.
    Indeed, in cases concerning the discharge of a public tenured employee,
    which often involve allegations of improper or criminal conduct, it has been held that
    pre-termination notice and an opportunity to respond in writing is enough to comport
    with due process. See, e.g., Pavonarius v. City of Allentown, 
    629 A.2d 204
    , 207 (Pa.
    Cmwlth. 1993) (discussing Cleveland Board of Education v. Loudermill, 
    470 U.S. 532
    , 545-46 (1985)); accord Matter of Richie v Coughlin, 
    148 A.D.2d 178
    , 183 (NY
    App. Div., 3d Dept. 1989). In Pavonarius, this Court stated: “Only a meeting with
    the employer or a written notice sent by the employer to the employee setting forth
    the reasons for her termination and requesting the employee to respond in writing to
    the allegations is necessary to satisfy the [tenured employee’s] basic due process
    rights.” 
    629 A.2d at 207
    . The reason for this rule is that the predeprivation phase
    serves as “an initial check against mistaken decisions – essentially, a determination of
    whether there are reasonable grounds to believe that the charges . . . are true and
    support the proposed action.” Loudermill, 
    470 U.S. at 545-46
    .
    In cases analogous to the present scenario, the federal circuit courts of
    appeals have also concluded that notice and an opportunity to respond in writing
    satisfied the predeprivation prong of due process.
    In Agility Defense & Government v. United States Department of
    Defense, 
    739 F.3d 586
     (11th Cir. 2013), the United States Court of Appeals for the
    Eleventh Circuit concluded that government contractors had a liberty interest in not
    having stigmatizing allegations disseminated or publicized; this liberty interest was at
    stake when the agency suspended the contractors for multiple years due to an
    indictment for fraud; yet, the contractors were afforded procedural due process by
    14
    virtue of the fact that the contractors received notice of the suspension and had an
    opportunity to respond in writing. The court explained:
    [E]ven assuming that the suspension of the [contractors]
    deprived them of their liberty, the regulation does not
    violate the Due Process Clause because it contains
    constitutionally adequate procedures. An agency must
    immediately notify a suspended affiliate of its suspension
    by certified mail. 
    48 C.F.R. §9.407-3
    (c). That notification
    includes the basis of the suspension and advises the affiliate
    of its opportunity to respond in writing. 
    Id.
     These
    procedures – notification and an opportunity to respond –
    are constitutionally adequate procedures for multiyear
    suspensions.
    
    Id. at 591
    .
    In Northlake Community Hospital v. United States, 
    654 F.2d 1234
     (7th
    Cir. 1981), the United States Court of Appeals for the Seventh Circuit addressed a
    hospital’s claim that it had been denied due process because its Medicare provider
    agreement was terminated prior to a hearing. In that case, the Department of Health
    and Human Services conducted several inspection visits and provided the hospital
    with notices of deficiencies, outlining the hospital’s noncompliance with
    administrative regulations.    In turn, the hospital had the opportunity to respond in
    writing to the notices and was given a grace period to correct the deficiencies. When
    the hospital failed to correct the deficiencies, the Department sent notice to the
    hospital that its Medicare provider agreement was terminated. The hospital then filed
    suit, alleging that the pre-termination procedures did not conform with procedural due
    process. The court disagreed, concluding that notice and an opportunity to respond in
    writing fulfilled the requirements of due process.
    Similarly, in Town Court Nursing Center v. Beal, 
    586 F.2d 266
     (3d Cir.
    1978) (en banc), the Secretary of the Department of Health and Human Services
    15
    decided not to renew a nursing home’s Medicaid provider agreement based upon
    regulatory violations found by health care inspectors. The Third Circuit concluded
    that the nursing home was only entitled to notice and an opportunity to respond prior
    to the non-renewal. In pertinent part, the court stated:
    [T]he decision not to renew a provider agreement is an
    easily documented, sharply focused decision in which
    issues of credibility and veracity play little role. It is based
    in most cases upon routine, standard, unbiased reports by
    health care professionals. Those professionals evaluate the
    provider in light of well-defined criteria that were
    developed in the administrative rule-making process.
    Written submissions are adequate to allow the provider to
    present his case. Given the extensive documentation that
    the provider is able to submit in response to the findings of
    the survey teams, the provider is unlikely to need an
    evidentiary hearing in order to present his position more
    effectively.
    
    Id. at 277
    .
    The reasoning and conclusions of the above cases apply here with equal
    force. The Department’s agents are presumed to have conducted their inspections in
    good faith and in accordance with the law, Office of Governor v. Donahue, 
    98 A.3d 1223
    , 1239 (Pa. 2014); the regulations are relatively straightforward and lacking
    discretionary factors or standards; and the LIS constitutes reasonable grounds to
    believe that the violations were committed. In terms of the LIS, section 3 is located
    directly beneath the “Description of Violation” section, and the Facility is permitted
    to state in this section any and all reasons why it believes a violation is incorrect and
    also to “attach pages as necessary.” (See R.R. at 1a, 4a, 15a.) Ultimately, by
    affording the Facility with the initial opportunity to dispute the violations in writing,
    the Department has provided the Facility with the ability to adequately protect its
    16
    reputation by responding to allegations concerning its operations. Therefore, we
    conclude that this predeprivation procedure comports with due process.
    The Facility, nevertheless, takes issue with the fact that it must file a
    plan of correction after receiving the LIS and the Department may revoke its
    certificate of compliance if the plan submitted is not acceptable. At the outset, this
    Court is mindful of its duty to interpret a regulation in a constitutional manner if that
    is reasonably possible. See Bricklayers of Western Pennsylvania Combined Funds,
    Inc. v. Scott’s Development Co., 
    90 A.3d 682
    , 692 (Pa. 2014).
    Notwithstanding the Facility’s arguments, there is nothing in the
    regulations that prohibit the Facility from maintaining its position and stating on its
    plan of correction that no plan is needed because no violations have occurred. In
    such a situation, the Department will be forced to consider the Facility’s written
    response to the LIS to determine whether the proposed plan of correction is
    “acceptable.” 
    55 Pa. Code §20.52
    . If the Department decides that the plan is not, the
    Department may revoke the Facility’s certificate of compliance.           
    55 Pa. Code §§20.71
    (3). Conversely, upon review of the written response, the Department may
    decide that the violations are not properly supported, and the regulations do not
    prohibit the Department from retracting or rescinding the LIS. In the event the
    Department revokes the certificate of compliance, the Facility will have the
    opportunity to appeal, and it will receive a full-blown postdeprivation evidentiary
    hearing before an ALJ and the Bureau, along with the right to seek further appellate
    review in this Court and the Supreme Court. See generally Millcreek Manor v.
    Department of Public Welfare, 
    796 A.2d 1020
    , 1028-30 (Pa. Cmwlth. 2002)
    (discussing the requirements for a full, de novo evidentiary hearing before an ALJ);
    see also Rogers v. Pennsylvania Board of Probation & Parole, 
    724 A.2d 319
    , 321-22
    17
    (Pa. 1999). Although the Department’s regulations are silent on the latest matter, we
    must interpret them as allowing the Facility to litigate and contest alleged violations
    at a revocation hearing based upon an unacceptable plan of correction, or at any
    hearing where violations, both past and present, form the underlying basis (or part of
    the basis) for nonrenewal or revocation.
    When the regulations are interpreted in this manner, the traditional
    administrative hearing and subsequent judicial review are more than adequate to
    satisfy the postdeprivation demands of due process. This procedure provides the
    Facility with a full and fair opportunity to vindicate its reputation and establish that
    the LIS is incorrect and/or that it did not violate the Department’s regulations.
    In Department of Public Welfare v. Eisenberg, 
    454 A.2d 513
     (Pa. 1982),
    the Department suspended a doctor from participating in a welfare program based on
    allegations that the doctor maintained inadequate documentation and billed for
    unnecessary medical services. In the notice of suspension, the Department advised
    the doctor of his right to appeal to the Bureau. This Court held that the Department’s
    procedures violated due process by failing to provide the doctor with a predeprivation
    hearing. On appeal, our Supreme Court reversed, concluding that due process was
    satisfied because the Department provided the doctor with a postdeprivation hearing.
    Significantly, our Supreme Court determined that “no pre-termination hearing is
    required” and that the doctor’s “due process right has been met by a full
    administrative hearing accorded to [the doctor] before the [Bureau.]” 
    Id. at 516
    (citations omitted). See also Cohen v. City of Philadelphia, 
    736 F.2d 81
    , 86 (3d Cir.
    1984); accord Bello v. Walker, 
    840 F.2d 1124
    , 1127-28 (3d Cir. 1988).
    In Segal v. City of New York, 
    459 F.3d 207
     (2d Cir. 2006), the
    government employer terminated an employee for inflicting corporal punishment
    18
    upon a student under her care and supervision.          The court concluded that this
    allegation constituted a stigmatizing statement about the employee, calling into
    question her good name, reputation, and integrity, and that the employee was entitled
    to procedural due process. After balancing the employee’s reputational interests and
    the employer’s interest in making quick personnel decisions, the court concluded that
    a predeprivation hearing was not required and that a postdeprivation hearing was
    sufficient:
    Although a pre-termination hearing would provide [the
    employee] with the opportunity to refute any stigmatizing
    statements prior to her entry into the job market, such a
    hearing comes at too high a cost to the government. The
    government’s important interests – in both explaining its
    employment decisions and exercising its right to terminate
    an at-will employee immediately – would be unduly
    impaired if we were to require a pre-termination hearing in
    such circumstances. . . .
    [T]he government is simply required to provide [the
    employee] with an opportunity to salvage her name. In our
    view, there is no reason to believe that this limited right – a
    meaningful opportunity to clear one’s name – cannot be
    adequately vindicated at a reasonably prompt, post-
    termination name-clearing hearing.
    
    Id. at 216-17
     (citations omitted).
    Finally, in González-Droz v. González-Colón, 
    660 F.3d 1
     (1st Cir. 2011),
    the Puerto Rico Board of Medicine determined that a doctor was engaged in the
    illegal practice of medicine that posed a risk of harm to patients and suspended the
    doctor’s medical license pending a hearing. Having no opportunity to respond to the
    suspension notice prior to the hearing, the doctor filed a complaint, contending that
    the lack of a predeprivation hearing violated his due process rights. The United
    States Court of Appeals for the First Circuit disagreed, reasoning as follows:
    19
    [W]e conclude that a prompt post-deprivation hearing was
    constitutionally adequate.
    In working this calculus, we give great weight to the
    proposition that when the state reasonably determines that a
    license-holder poses a risk to patient safety, pre-deprivation
    process typically is not required. In these circumstances,
    moreover, the need for a pre-deprivation hearing is further
    diminished by the state’s strong interest in upholding the
    integrity of a state-licensed profession. The Board’s
    concern that [the doctor] “may harm patients” because he
    lacks the “training required by the [regulation] to carry out
    such procedures” provided a sufficient basis for a founded
    conclusion that no pre-deprivation hearing was
    constitutionally compelled.
    Neither the possible risk of an erroneous deprivation nor the
    possible benefit of additional safeguards shifts the balance.
    Especially in cases involving public health and safety and
    the integrity of professional licensure, the force of these
    factors is significantly diminished by the ready availability
    of prompt post-deprivation review.
    
    Id. at 14
     (citations, brackets, and most quotations omitted).
    Eisenberg, Segal and González-Droz collectively establish that when an
    individual is deprived of a reputational interest, a postdeprivation administrative
    hearing to refute the allegations typically satisfies the demands of procedural due
    process.
    Here, the Department and the Commonwealth have an overwhelming
    interest in ensuring that prompt action is taken when an agent observes that a licensed
    child residential treatment center has violated the Department’s regulations. See also
    Northlake Community Hospital, 
    654 F.2d at 1242
    . Through legislative delegation,
    the Department has determined that any violation of the regulations threatens the
    safety and health of children. See 
    55 Pa. Code §3800.1
    . Given the circumstances of
    this case, a predeprivation hearing is not necessary and a postdeprivation hearing
    20
    fulfills the requirements of due process. See also Lossman v. Pekarske, 
    707 F.2d 288
    ,
    291 (7th Cir. 1983) (“[T]here is no denial of due process in refusing to grant a full
    adversary hearing before taking away property or liberty, so long as such a hearing is
    provided later . . . and there is justification for the delay. When a child’s safety is
    threatened, that is justification enough for action first and hearing afterward.”). Our
    interpretation of the regulations above mandates that such a procedure be available to
    the Facility.
    *     *      *
    On one hand, the Department and the Commonwealth have a paramount
    interest, when compared to the Facility’s asserted interest, in ensuring the health and
    safety of dependent and delinquent children who reside in a child residential
    treatment center. It would be unduly burdensome to compel the Department to
    conduct an evidentiary hearing for every violation in an LIS before requiring a
    facility to take remedial action. As noted above, a facility has the right to dispute the
    violations in the LIS and is free to assert its compliance in its plan of correction.
    True, in doing so, the Facility may risk the revocation of its certificate of compliance,
    but it will nonetheless receive the full panoply of due process protection that goes
    along with a prompt, administrative evidentiary hearing and subsequent judicial
    review. In the event the Facility opts instead to submit a suitable plan of correction,
    and the violations in the LIS are used in the future as a basis for revocation or
    nonrenewal, the Facility will have same opportunity to challenge the validity of the
    initial violations. Regardless of any delay or length of time that may pass from when
    the Facility affirmatively decides to challenge the violations at a revocation or
    nonrenewal hearing, the fact that there is a comprehensive and adequate procedural
    21
    mechanism available to it suffices for purposes of due process. See United States v.
    Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency,
    
    461 U.S. 555
    , 568-69 (1983); Midnight Sessions, Ltd. v. City of Philadelphia, 
    945 F.2d 667
    , 682 (3d Cir. 1991).
    On the other hand, we have assumed that the Facility has a liberty
    interest in its reputation and that this interest may be impaired if an unfounded LIS is
    publicized.    Given the procedural safeguards detailed above, this interest is
    adequately protected at all stages of the regulatory process because the Facility will
    eventually have the opportunity to contest a violation at an administrative hearing and
    seek judicial review. See Nnebe v. Daus, 
    644 F.3d 147
    , 159 (2d Cir. 2011). On this
    note, the Facility’s reliance on Clayton and the irrebutable presumption doctrine is
    misplaced. Any presumption concerning an alleged violation is not conclusive, and,
    under the regulatory scheme, the Facility has the opportunity to disprove the
    violation. See In the Interest of J.B., 107 A.3d at 37 (stating that a presumption is not
    irrebuttable when the party has the opportunity to rebut or contest the validity of the
    presumption); Commonwealth v. Aziz, 
    724 A.2d 371
    , 374-75 (Pa. Super. 1999)
    (same). In the meantime, the Facility’s ability to respond to and contest the violations
    in writing is enough to protect its reputational interests from being unnecessarily
    impaired until adverse action is taken against the certificate of compliance and the
    Facility challenges the violations at an evidentiary hearing before the ALJ and the
    Bureau. Therefore, we conclude that the Facility’s due process rights have not been
    violated.
    22
    Any argument that the LIS is an appealable adjudication is waived
    Before concluding, we note that in its principal brief, the Facility does
    not argue that it has a statutory right to appeal. Therefore, this argument is waived.
    Jimoh v. Unemployment Compensation Board of Review, 
    902 A.2d 608
    , 611 (Pa.
    Cmwlth. 2006). For the first time in its reply brief, the Facility suggests that the LIS
    constituted an “adjudication” under the Administrative Agency Law, 2 Pa.C.S.
    §§501-508, 701-704. However, “Pennsylvania Rule of Appellate Procedure 2113(a)
    precludes an appellant from raising a new issue in a reply brief.”           Borough of
    Glendon v. Department of Environmental Resources, 
    603 A.2d 226
    , 258 (Pa.
    Cmwlth. 1992).
    In any event, an “adjudication” is defined as: “[A]ny final order, decree,
    decision, determination or ruling by an agency affecting personal or property rights,
    privileges, immunities, duties, liabilities or obligations of any or all of the parties to
    the proceedings in which the adjudication is made.” 2 Pa.C.S. §101. Although the
    Facility maintains that the letter was a “final decision,” our analysis above establishes
    that subsequent procedural avenues are available to the Facility to contest the
    violations in the LIS. See Citizens Coal v. Department of Environmental Protection,
    
    110 A.3d 1051
    , 1059 n.15 (Pa. Cmwlth. 2014) (collecting cases and stating that a
    letter informing a coal company that it must compensate the Commonwealth was not
    an adjudication where the letter was merely “one step in a continuing multi-step
    process”).
    Moreover, in Sunbeam Coal Corp. v. Department of Environmental
    Resources, 
    304 A.2d 169
     (Pa. Cmwlth. 1973), an administrative inspector issued a
    coal company notices of violations following an inspection of the premises. The
    statutory scheme provided the coal company with thirty days to correct the violations;
    23
    if the coal company failed to make the corrections, the agency, after a hearing, could
    suspend its license or issue a cease and desist order until the coal company came into
    full compliance. In Sunbeam Coal Corp., the coal company attempted to file an
    immediate appeal upon receiving the notices of violations. However, this Court
    dismissed the appeal, holding that “[c]learly, . . . the notices here were not
    adjudications[.]” 
    Id. at 171
    . See also NHS Human Services of PA v. Department of
    Public Welfare, 
    985 A.2d 992
    , 993-96 (Pa. Cmwlth. 2009); Fiore v. Department of
    Environmental Resources, 
    510 A.2d 880
    , 881-83 (Pa. Cmwlth. 1986).
    Because the Facility waived any argument that the LIS is an appealable
    adjudication, we need not determine whether our holding in Sunbeam Coal Corp. is
    applicable in this case.
    Conclusion
    After considering the private and governmental interests at stake, as
    required by Mathews and R., we conclude that the predeprivation and postdeprivation
    procedures explained above comport with the due process clauses of the United
    States and Pennsylvania Constitutions. We further conclude that the Facility waived
    any argument that the LIS constitutes an appealable adjudication under the
    Administrative Agency Law. Accordingly, we affirm the Bureau’s February 2, 2015
    order.
    As a final matter, after considering the application to strike brief filed by
    the Facility, it is denied.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    24
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    The Summit Academy,                    :
    Petitioner             :
    :    No. 257 C.D. 2015
    v.                         :
    :
    Department of Human Services,          :
    Respondent            :
    ORDER
    AND NOW, this 7th day of December, 2015, the February 2, 2015
    order of the Department of Human Services, Bureau of Hearings and Appeals, is
    affirmed.
    The application to strike brief filed by Summit Academy is denied.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge