Oak Crest Manor Nursing Home, LLC Day Life Corporation Terry Rowan Norma Elemento And Grover Moore v. Peggy Barba, as Guardian of S.F. ( 2016 )

ACCEPTED
03-16-00514-CV
12930167
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/27/2016 3:15:20 PM
JEFFREY D. KYLE
CLERK
NO. 03-16-00514-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
9/27/2016 3:15:20 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
OAK CREST MANOR NURSING HOME, LLC, DAY LIFE
CORPORATION, TERRY ROWAN, NORMA ELEMENTO, AND
GROVER MOORE,
Appellants,
v.
PEGGY BARBA, AS GUARDIAN OF S.F.,
Appellee.
On Appeal from the Probate Court,
Travis County, Texas, Cause No. C-1-PB-16-00776
BRIEF OF APPELLEE
Jeff Diamant (Of Counsel)
State Bar No. 00795319
John C. Ramsey
State Bar No. 24027762
Joel Pardo
State Bar No. 24083617
RAMSEY LAW GROUP, P.C.
7521 Westview Drive
Houston, TX 77055
Phone: (713) 489-7577
Fax: (888) 858-1452
Email: john@ramseylawpc.com
Email: jeff@ramseylawpc.com
Email: joel@ramseylawpc.com
Jacques G. Balette
MARKS, BALETTE, GEISSEL &
YOUNG, PLLC
State Bar No. 00798004
10000 Memorial Drive, Suite 760
Houston, Texas 77024
Phone: (713) 681-3070
Fax: (713) 681-2811
Email: JacquesB@marksfirm.com
BRIEF OF APPELLEE PAGE II
TABLE OF CONTENTS
RECORD AND APPENDIX REFERENCES .................................................... 2
STATEMENT REGARDING ORAL ARGUMENT ....................................... 2
INTRODUCTION ................................................................................................ 2
ISSUES PRESENTED........................................................................................... 3
STATEMENT OF FACTS .................................................................................... 4
SUMMARY OF THE ARGUMENT .................................................................. 8
ARGUMENT........................................................................................................ 10
I. THE NURSING HOME ADMISSION AGREEMENT IS VOID
AS APPELLEE LACKED CAPACITY TO CONTRACT. .............. 10
A. Shawn Frank lacked capacity to contract before, during and
after his execution of the Admission Agreement. .................... 10
B. Appellants’ own contemporaneous records establish Shawn
Frank lacked capacity upon admission. ..................................... 12
C. Appellee Established Lack of Capacity to Contract. ................ 14
1. Expert David E. Mansfield, M.D. establishes Shawn Frank
as totally incapacitated on the date and time of the
execution of the agreement at issue. ........................................ 15
2. The affidavit of Peggy Barba, Shawn Frank’s mother, also
establishes that he was totally incapacitated on the date
and time the agreement at issue was executed. ..................... 17
D. Appellants’ “lucid interval” argument fails. ............................ 18
1. The Affidavit of Terry Rowan must be disregarded and
certainly does not support a “lucid interval” argument. ..... 19
BRIEF OF APPELLEE PAGE III
2. Appellants’ argument that other records generated by them
show “lucid interval” also fail to substantiate their claim
and are not qualified opinions or observations. ................... 22
E. The evidence establishes Shawn Frank lacked capacity to
contract on the date and time of his execution of the
agreement. ........................................................................................ 23
II. THERE IS NO WAIVER OF ANY “RIGHT TO VOID” THE
ADMISSION AGREEMENT, NOR IS APPELLEE SOMEHOW
ESTOPPED FROM ESTABLISHING IT IS VOID, NOR BOUND
BY THE DIRECT-BENEFITS ESTOPPEL THEORY. .................... 24
A. Appellants’ “void v. voidable” argument is not valid. ........... 25
B. An incapacitated person can no more disaffirm an agreement
than bind himself to it in the first place. ................................... 25
C. Appellee’s previous pleading of breach of contract does not
create an estoppel as it is a permissive “alternative theory”,
subsequently dropped by Appellee. .......................................... 26
D. The Direct-Benefits Estoppel argument does not apply......... 27
III. THE ARBITRATION AGREEMENT IS VOID AND FEDERAL
PREEMPTION OF STATE LAW BY THE FEDERAL
ARBITRATION ACT ARGUMENTS FAIL.................................... 28
A. Texas Civil Practice and Remedies Code § 74.451 bars
enforcement of this arbitration provision. ................................ 29
B. The FAA does not preempt Chapter 74 due to a lack of
interstate commerce. ...................................................................... 30
C. As a matter of policy, validating Appellants’ position would
destroy state’s rights to enforce state law on many issues. .... 34
CONCLUSION .................................................................................................... 35
BRIEF OF APPELLEE PAGE IV
TABLE OF AUTHORITIES
CASES
Buckeye Check Cashing v. Cardegna,
546 U.S. 440, 448 (2005) .................................................................................... 25
The Fredricksburg Care Company, L.P. v. Perez,
461 S.W.3d 513 (Tex. 2015), reh’g denied (June 26, 2015) .............................. 30
Gaston v. Copeland,
335 S.W.2d 406 (Tex. Civ. App.—Amarillo 1960, writ ref’d n.r.e.) ............ 25
Harrell v. Hochderffer,
345 S.W.3d 652 (Tex. App.—Austin 2011, no pet) ................................. 20, 22
In re December Nine Co., Ltd.
225 S.W.3d 693 (Tex. App.—El Paso, no pet) ............................................... 32
In re Estate of Gray,
279 S.W.2d 936 (Tex. App.—El Paso 1955, writ ref’d n.r.e.) ........... 16, 21, 22
In re L & L Kempwood Assoc, L.P.,
9 S.W.3d 125 (Tex. 1999) .................................................................................. 30
In re Morgan Stanley & Co,
293 S.W.3d 182 (Tex. 2009) .............................................................................. 25
In re Nexion Health at Humble, Inc.
173 S.W.3d 67 (Tex. 2005) ................................................................................ 31
In re Tenant Healthcare, Ltd.,
84 S.W.3d 760 (Tex. App.—Houston [1st Dist.] 2002, no pet.) ................... 32
J.M. Davidson Inc. v. Webster,
128 S.W.3d 223 (Tex. 2003) .............................................................................. 11
Oram v. General American Oil Company of Texas,
513 S.W.2d 533 (Tex. 1974) .............................................................................. 26
BRIEF OF APPELLEE PAGE V
Prima Paint Corp. v. Flood & Conklin Mfg.,
388 U.S. 395 (1967) ............................................................................................ 11
Regency Advantage L.P. v. Bingo Idea-Watauga, Inc.,
936 S.W.2d 275 (Tex. 1996) .............................................................................. 27
Rent-A-Center West, Inc. v. Jackson,
130 S. Ct. 2772, 2778 (2010) ............................................................................... 11
United States v. Girod,
646 F.3d 304 (5th Cir. 2011).............................................................................. 33
Zimmerman v. First American Title Ins.,
790 S.W.2d 698 (Tex. App.—Tyler 1990, writ denied)................................. 27
STATUTES
TEX. CIV. PRAC. & REM. CODE § 74.451 ............................................................... 29
TEX. R. CIV. P. 48 ................................................................................................... 27
TEXAS GOVERNMENT CODE § 531.021 .................................................................. 31
BRIEF OF APPELLEE PAGE VI
NO. 03-16-00514-CV
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN
OAK CREST MANOR NURSING HOME, LLC, DAY LIFE
CORPORATION, TERRY ROWAN, NORMA ELEMENTO, AND
GROVER MOORE,
Appellants,
v.
PEGGY BARBA, AS GUARDIAN OF S.F.,
Appellee.
On Appeal from the Probate Court,
Travis County, Texas, Cause No. C-1-PB-16-00776
BRIEF OF APPELLEE
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee Peggy Barba, As Guardian of S.F., files this Brief of Appellee,
and submits this Brief in response to the Brief of Appellant in support of
their interlocutory appeal of the Probate Court’s decision to deny
Appellants’ Motion to Compel Arbitration, and would respectfully show
this Court the following:
RECORD AND APPENDIX REFERENCES
References to the Clerk’s Record and Reporter’s Record in this Brief
are to page numbers. Clerk’s Record references are abbreviated by page
number as “(CR __).” Reporter’s Record references are abbreviated by page
number as “(RR __).” Appendix references to the Appendix attached to this
document are abbreviated as “(Appellee App. __).” Appendix references to
the Appendix attached to Appellants’ Appendix are abbreviated as “(App.
__),” to conform to Appellants’ designation and to avoid confusion.
STATEMENT REGARDING ORAL ARGUMENT
Appellants have requested oral argument. Appellee has no objection
to oral argument if the Court deems it necessary. If oral argument is to take
place, Appellee requests to have the opportunity to participate in same.
INTRODUCTION
Appellee is an incapacitated, schizophrenic person that signed a 15-
page nursing home admission agreement upon his involuntary admission to
the home. This agreement contained an arbitration provision. Appellant
seeks to enforce this agreement. Appellee contends that this admission
agreement is void as the Appellee lacked capacity to enter into such
agreement. As the law on this issue is unquestionably clear, if this Court
agrees that Appellee lacked capacity to contract, this admission agreement
is void, there is no arbitration provision to enforce, and therefore, there are
BRIEF OF APPELLEE PAGE 2
no other issues to address in this appeal. Simply, if Appellee lacked capacity,
every other issue presented by Appellants is moot.
If, however, this Court finds that Appellee had capacity to enter into
this agreement, stripping him of his constitutional right to trial by jury, the
Court must address the applicability of Federal preemption, which would
cause the Federal Arbitration Act to govern the enforceability of this
particular arbitration provision. To reach a finding of Federal preemption,
Appellants seek to have this Court find that interstate commerce is
implicated in this situation involving a Texas resident and a Texas nursing
home, solely because the Texas resident received Texas Medicaid benefits.
This is a question of first impression.
If this Court finds that Appellee had capacity, and that Federal
preemption does not apply, the arbitration provision at issue can not be
enforced as it is in clear violation of Texas’ laws regarding arbitration
provisions in a health care liability context.
ISSUES PRESENTED
Issue No. 1: Did Shawn Frank have capacity to execute the admission
agreement at issue? Shawn Frank lacked capacity to contract when
Appellants had him sign the 15-page contract waiving his constitutional
rights. He lacked such capacity prior and following, continuously, as well,
and this fact was known to Appellants upon Appellee’s admission to
BRIEF OF APPELLEE PAGE 3
Appellants’ nursing home. As such, there is no enforceable agreement, let
alone an enforceable arbitration provision.
Issue No. 2: If Shawn Frank had capacity to execute the admission
agreement at issue, does Federal preemption by the Federal Arbitration Act
preempt the Texas’ law statute that would render the arbitration provision
in the admission agreement void for failure to comply with Texas law
requisites for enforceable arbitration provisions in a health care context? The
question of Federal preemption by the Federal Arbitration Act is never at
issue as the entire agreement is void due to Shawn Frank’s lack of capacity
to contract. But even if it were, there is no implication of intestate commerce,
precluding Federal preemption.
STATEMENT OF FACTS
Shawn Frank is a mentally incapacitated adult, so much so that he was
found totally incapacitated by the Probate Court for Travis County twice.
(CR 117). He has a lengthy history of serious mental illness and total
incapacitation. (CR 203, Appellee App A; CR 198, Appellee App B). Shawn
Frank had been at Seton Shoal Creek Hospital for a month prior to his
admission to Oakcrest Manor due to a psychotic event where he attacked an
outpatient social worker after hearing voices and having delusions. He was
put into Oakcrest Manor by a case worker upon his discharge from Shoal
Creek and transfer to Appellants’ facility, Oakcrest Manor, contrary to
BRIEF OF APPELLEE PAGE 4
Appellants’ assertion that he “voluntarily” checked himself in as if he
walked in, put down a credit card, and got a hotel room for the night. (CR
198, Appellee App B).
Upon his admission to Oakcrest Manor, staff of Oakcrest Manor made
no less than 6 independent records at the time of his admission noting Mr.
Frank’s diagnosis of a history of mental illness including, but not limited to:
• Bipolar Affec
• Schizoaffective Disorder (Schizophrenia)
• Neurotic Disorder
• Depression
Appellants’ records upon admission indicate “Hx of multiple psych
admissions”, “25(+) yr Hx of MI [mental illness}”, and “suicidal attempts.”
(CR 200-06, Appellee App A). Nevertheless, the Administrator of Oakcrest
Manor, Terry Rowan, had the totally incapacitated Shawn Frank execute the
15-page “Oakcrest Manor Nursing Home Admission Agreement”
containing a waiver of his Constitutional right to trial by jury by way of an
arbitration provision on page 12 that does not, in any way, comply with the
Texas Civil Practice and Remedies Code’s ban on and requirements for
arbitration provisions in the health care field. (CR 106, App 3). The only
signatures on the “contract” at issue are Plaintiff Shawn Frank, an
incapacitated person, and Oakcrest Manor’s Administrator. Id.
On January 13, 2014, Peggy Barba, Shawn Frank’s current guardian,
filed an application to be the guardian of Shawn Frank based on his complete
BRIEF OF APPELLEE PAGE 5
lack of capacity. (CR 110). Around that same time, she notified Appellants
that Shawn Frank had called and warned of his intent to elope and jump off
a bridge. After Appellee provided warning of his intent to elope and attempt
suicide by jumping off a bridge,1 Oakcrest Manor took no action, and
allowed Shawn Frank to do that very thing about 1-day later, causing serious
permanent injuries.
A physician appointed by the Probate Court, Dr. Roger McRoberts,
examined Shawn Frank approximately 6 weeks after his admission to
Oakcrest Manor and then filed with the Probate Court a Physician’s
Certificate of Medical Examination wherein he found:
• Mental Diagnosis: Schizophrenia (p.1)
• Ability to Make Reasonable Decisions (p.2):
NO – Make complex business, managerial, and financial
decisions
NO – Determine the proposed ward’s own residence
NO – Attend to instrumental activities of daily living
NO – Consent to medical and dental treatment
NO – Consent to psychological and psychiatric treatment
• Evaluation of Capacity (p.4)
1
Oakcrest was well aware of Shawn Frank’s history of elopement and suicide attempts.
(CR 147, 207, Appellee App A).
BRIEF OF APPELLEE PAGE 6
YES – “Based upon my last examination and observations of
the Proposed Ward, it is my opinion that the Proposed
Ward is incapacitated according to the legal
definition… [emphasis in original]
• If you indicated that the Proposed Ward is incapacitated, indicate
the level of incapacity:
TOTAL – The Proposed Ward is totally without capacity (1)
to care for himself and (2) to manage his or her
property.
(CR 113-16, Appellee App C). In fact, Dr. McRoberts’ findings were so
significant, he also found and indicated that Shawn Frank would NOT even
be able to attend, understand and participate in his own guardianship
hearing and recommended that he NOT attend such hearing. Id.
Nevertheless, Appellants seek to enforce this agreement and strip a
totally incapacitated person of his Constitutional right to trial by jury.
In addition to the evidence above, Appellee also presented testimony
from Dr. David Mansfield, a qualified physician in this area attesting to the
fact that Shawn Frank was totally incapacitated on the date and time of his
execution of the agreement at issue, and his guardian/mother, who not only
repeated this fact, but further attested that Shawn Frank had been in the
same condition for nearly 2 decades prior. (CR 198-99, Appellee App B). In
stark contrast, Appellants contend that Shawn Frank had a “lucid interval”
on the day of his admission, based on non-expert impressions from the
nursing home administrator, Terry Rowan, who claims Appellee “seemed
BRIEF OF APPELLEE PAGE 7
fine,” (CR 131), and vague nurse’s notes that do not even attempt to claim
Shawn Frank had capacity on their face. (CR 201, App 5; CR 203, App 7).
Appellants seek a finding from this Court that Shawn Frank had a
“lucid interval” in an attempt to make the agreement enforceable, then seek
this Court to address a question of first impression and find that because
Shawn Frank received Medicaid benefits, interstate commerce is affected
and, therefore, the Federal Arbitration Act preempts the Texas law that
would otherwise make this arbitration agreement unenforceable as a matter
of law, assuming Shawn Frank had capacity in the first place.
SUMMARY OF THE ARGUMENT
The clear evidence establishes that Shawn Frank was totally
incapacitated by way of his extensive and severe mental illness, which the
record demonstrates he had for about two decades prior to his admission to
Oakcrest Manor. This was further supported by the Court-appointed
physician who declared him totally incapacitated approximately 6-weeks
after Mr. Frank’s admission, yet Appellants characterize to this Court Mr.
Frank’s incapacity as if he was just fine on the date of his admission, yet
suddenly contracted schizophrenia and neurotic disorder during the next 6
weeks as if he caught the flu. Their only real evidence is that Terry Rowan,
the Administrator, not a health care professional, said he “seemed fine.”
BRIEF OF APPELLEE PAGE 8
No matter what position Appellants take regarding Federal
preemption or the Federal Arbitration Act, no matter what case or statutory
authority they present, Texas law is clear that any presumption favoring
arbitration arises only after the party seeking to compel arbitration proves
that a valid arbitration provision exists. In other words, if there is no valid
contract, the arbitration provision and the relevant laws governing just do
not matter. Appellants simply cannot jump this hurdle.
The undeniable facts are:
1. Shawn Frank was incapacitated on December 13,
2013 (the date of his admission to Oakcrest
Manor), suffering from the same mental illnesses
that he still had on January 30, 2014, and had for
at least 15 years prior; and
2. Appellants knew on December 13, 2013 (the date
of Plaintiff’s admission) that Shawn Frank was
incapacitated.
This was the basis for the Probate Court’s decision to deny Appellants’
request to compel arbitration.
Assuming this Court finds that Shawn Frank did have the capacity to
contract, Appellants seek a ruling of Federal Arbitration Act preemption
because the arbitration provision forced on this incapacitated Plaintiff does
not comply with Texas state law, but may possibly comply with the FAA’s
more lax standard. Appellants’ arguments are fatally flawed for the
following reasons:
BRIEF OF APPELLEE PAGE 9
1) Shawn Frank was, is and continues to be an incapacitated person
(as deemed by the Probate Court), clearly lacking capacity to enter
into the “contract” and voiding the agreement containing the at-
issue arbitration provision;
2) Texas Civil Practices and Remedies Code § 74.451 clearly bars
arbitration provisions in Health Care Liability Claims other than in
limited circumstances, which do not exist in this case;
3) The Federal Arbitration Act does not preempt the above-referenced
Texas statute due to a lack of interstate commerce implications; and
4) Public policy mandates rejection of Appellants’ arguments as
accepting same would have catastrophic results on not only health
care liability law, but on contract law and state’s rights in general.
The analysis of this case is, therefore, did Shawn Frank have capacity
to enter into this agreement? If no, there is no arbitration and no other issues
are reached. If yes, does Federal preemption apply? If no, the arbitration
agreement at issue is unenforceable and there is no arbitration. If yes, must
this Court compel arbitration?
ARGUMENT
I. THE NURSING HOME ADMISSION AGREEMENT IS VOID AS
APPELLEE LACKED CAPACITY TO CONTRACT.
A. Shawn Frank lacked capacity to contract before, during and
after his execution of the Admission Agreement.
Shawn Frank, a diagnosed schizophrenic, is and was totally
incapacitated. This fact was substantiated by the qualified physician expert
who examined Shawn Frank for the Probate Court (CR 113-16, Appellee App
C), and then further ratified by this Court when this Court granted
BRIEF OF APPELLEE PAGE 10
guardianship to Peggy Barba, Shawn Frank’s mother. (CR 117). The Probate
Court stated in its order “that Shawn Frank continues to be an incapacitated
person and that he no longer has capacity to manage his property.” Id.
It is fundamental to contract law that a party must have capacity to
contract to form a valid and binding agreement. Neither arbitration
provisions, nor the Federal Arbitration Act (FAA), are immune from basic
principles of contract formation. In Rent-A-Center West, Inc. v. Jackson, the
United States Supreme Court (citing an earlier of its opinions) stated:
“To immunize an arbitration agreement from
judicial challenge on the ground of fraud in the
inducement would be to elevate it over other forms
of contract,”
130 S. Ct. 2772, 2778 (2010) (citing Prima Paint Corp. v. Flood & Conklin Mfg.
388 U.S. 395 (1967)). In so doing, the Supreme Court clearly delineates that
challenges to the validity of the entire agreement are issues for state law, not
that of an arbitrator.
The Texas Supreme Court has remained consistent with the U.S.
Supreme Court in noting that the strong presumption favoring arbitration
arises only after the party seeking to compel arbitration proves that a valid
arbitration provision exists. J.M. Davidson Inc. v. Webster, 128 S.W.3d 223,
227 (Tex. 2003). Thus, a party seeking to compel arbitration must first show
that the agreement itself meets all requisite contract elements. Id. There is not
BRIEF OF APPELLEE PAGE 11
a state in this country that fails to require capacity to contract as a
fundamental prerequisite of a contract.
As Shawn Frank is, was, and continues to be totally incapacitated,
Frank could not form a valid contract with Oakcrest Manor, and certainly
not a valid and binding agreement to arbitrate, which according to Dr.
McRoberts, Frank could not have understood. (CR 113-16, Appellee App B).
As such, Appellants’ Motion to Compel Arbitration, centered around a 15-
page contract made between a nursing home and a judicially-adjudicated
incompetent person, was properly denied by the lower Court.
B. Appellants’ own contemporaneous records establish Shawn
Frank lacked capacity upon admission.
Appellants’ own admission records establish Shawn Frank was
incapacitated at the time of admission. The records of Oakcrest Manor
demonstrate that Appellee was admitted on December 13, 2013 at or around
3:00pm. Oakcrest Manor itself generated the following records, most of
them made immediately upon admission (same day, and often within the
first hour after admission), all of which demonstrate clearly Appellee’s lack
of capacity at the date and time of his admission:
1. Oakcrest Manor Face Sheet, made by Oakcrest Manor on December
13, 2013 at 4:12pm, delineating under “Current Dx” that Frank had:
1. 296.52 Bipolar affec, Depressive
2. 295.40 Ac Schizophrenia
3. 300.9 Neurotic Disorder
BRIEF OF APPELLEE PAGE 12
(CR 200, Appellee App A).
Oakcrest Manor Resident - Data Collection Status Upon Admission,
made by J. Chudleigh (Attending Physician) on December 13, 2013
at 3:10pm showing a diagnosis of “Bipolar, Depression,
Schizophrenia. (CR 201, Appellee App A).
2. Oakcrest Manor Nursing Home Discharge Summary, created on
January 15, 2014, noting that Frank’s admission to Oakcrest was on
December 13, 2013 and his “admission diagnosis(es)” were “Bipolar
Affec. Depr-mod., Schizophrenia, Neurotic Disorder”. (CR 202,
Appellee App A).
3. Oakcrest Manor Nurse’s Notes, created upon admission on
December 13, 2013 stated:
3pm adm. From Shoal Creek 40 yr old
schiz[ophrenic] w/ male. Long Hx of mental
illness. Suicidal…jumped from a bridge in Nov.
Has a long Hx of violence.
(CR 203, Appellee App A).
4. Oakcrest Manor All Disciplines to Use Progress Notes, created only
4 days later on December 17, 2013 stated:
First OCNH [Oakcrest Nursing Home] admission
for this 40 yo single male who came to NH from
SCH [Shoal Creek Hospital]. He has a long Hx of MI
& multiple psych stops. His MI started in teen years &
was worsened by drug use. Res jumped off bridge
on 6/12 . . . Since then he has been in/out of psych
hosp . . . He denies MI.
(CR 204, Appellee App A).
5. Oakcrest Manor Social Services Assessment, created on December
17, 2013, recites all of the following facts about Shawn Frank:
1. Hx of multiple psych admissions
2. Schizophrenic
BRIEF OF APPELLEE PAGE 13
3. Long Hx of MI [mental illness]
4. Reports of suicidal attempts
5. 25 (+)- yr Hx of MI with multiple psych st.
(CR 205, Appellee App A).
Each of these records were created by the Appellants, and most at the
precise date and time of Appellee’s admission to Oakcrest Manor, and all of
them establish Plaintiff’s lack of capacity at the date and time of the
execution of the agreement at issue. Each of these records created by the
Appellants demonstrate clearly that, upon his admission, Mr. Frank was
suffering from the precise mental conditions that caused him to be totally
incapacitated that were the basis of the Probate Court’s decision to find him
incapacitated as a matter of law. Hence, Appellants’ own records create
more than sufficient proof that Shawn Frank lacked capacity to contract at
the precise time Oakcrest Manor made him sign their 15-page Admission
Agreement, waiving his Constitutional right to a trial by jury.
C. Appellee Established Lack of Capacity to Contract.
Appellee established that Shawn Frank lacked capacity to contract on
the date and at the time that he was forced to sign a contract, which does not
comport with Texas law, upon his involuntary admission to Oakcrest Manor.
Such proof came in the form of the following:
1. Appellants’ own nursing home admission records
demonstrating that Oakcrest Manor knew at the
exact date and time of Shawn Frank’s admission
to Oakcrest Manor that Shawn Frank lacked
BRIEF OF APPELLEE PAGE 14
capacity to contract. As well, these records prove
that at the time of the hearing on this issue in the
Probate Court, Appellants were aware that they
knew of Shawn Frank’s lack of capacity at the
exact date and time he was admitted to the home,
although they attempted to divert the issue.
(Addressed in the previous section).
2. Affidavit of David E. Mansfield, M.D., a medical
doctor with over 40 years of experience, attesting
that Shawn Frank suffered from schizoaffective
disorder (schizophrenia), bipolar disorder and
depression on December 13, 2013 at the time of
Shawn Frank’s admission to this nursing home.
As such, he lacked the capacity to contract (he was
totally incapacitated) and that, given the nature of
his mental illness, he may even present as if he
was coherent and able to process and understand
the 15-page contract, even though he was not. (CR
196-97, Appellee App D).
3. Affidavit of Peggy Barba, Shawn Frank’s mother,
who attests that her son was admitted to this
home by a case worker, not voluntarily (unlike
Appellants’ assertion), and that her son had
suffered from these same mental illnesses for at
least 15 years prior to his admission to Oakcrest
Manor that rendered him totally incapacitated.
(CR 198-99, Appellee App B).
1. Expert David E. Mansfield, M.D. establishes Shawn Frank as
totally incapacitated on the date and time of the execution
of the agreement at issue.
David E. Mansfield, M.D. is a medical doctor with extensive
experience in both medicine and nursing homes. In his affidavit, Dr.
Mansfield describes Shawn Frank as “a person who likely cannot distinguish
what is real and what is false” and notes that persons with Frank’s
BRIEF OF APPELLEE PAGE 15
conditions “can even appear lucid, responsive and as if they have full
capacity when, in fact, they do not.” (CR 196-97, Appellee App D).
Most importantly, Dr. Mansfield declares:
…to a reasonable degree of medical probability,
based on Shawn Frank’s condition, he would lack
sufficient capacity to contract and would require a
guardian. It is further my opinion that, to a
reasonable degree of medical probability, Shawn
Frank was totally incapacitated on December 13,
2013, the day he was admitted to Oakcrest Manor, as
he was prior to his admission, and as he continues to
be.
Id. This expert testimony should establish that Appellee was totally
incapacitated when executing the agreement at issue, rendering it
unenforceable.
Appellants’ contention regarding Dr. Mansfield’s testimony is that is
is “conclusory” or “vague.” They are critical of Dr. Mansfield’s general
descriptions of how persons with the psychological ailments suffered by
Shawn Frank manifest such ailments. They skip over the quoted portion of
Dr. Mansfield’s testimony above that opines conclusively that Shawn Frank
lacked capacity on December 12, 2013. If this Court considers any evidence of
capacity, it must weight Dr. Mansfield’s testimony the most heavily.
As is addressed directly in In re Estate of Gray, 279 S.W.2d 936 (Tex.
App.—El Paso 1955, writ ref’d n.r.e.), which is both cited and relied upon by
Appellants, absent sufficient familiarity with the alleged incapacitated
BRIEF OF APPELLEE PAGE 16
person, the Court should exclude non-expert testimony regarding capacity.
This should result in the exclusion of all of Appellants’ proposed evidence,
but should as well result in the expert opinion of Dr. Mansfield (and Dr.
McRoberts) being the most heavily weighted evidence of Shawn Frank’s
incapacity.2
2. The affidavit of Peggy Barba, Shawn Frank’s mother, also
establishes that he was totally incapacitated on the date and
time the agreement at issue was executed.
In further support, Appellee submitted the affidavit of Peggy Barba,
Frank’s mother and legal guardian. (CR 198-99, Appellee App B). Having
clearly superior personal knowledge of his condition, Mrs. Barba testifies
that her son has suffered from severe mental illness since he was a teenager.
Id. This fact is also supported by Defendant’s own records. (CR 200-205,
Appellee App A). Mrs. Barba also notes her son has a long history of mental
illness that preceded his admission to Oakcrest Manor by at least 15 years.
(CR 198-99, Appellee App B).
In addition, Mrs. Barba testifies that Appellee did not “voluntarily
check himself in” as Appellants would have this Court believe. According to
Mrs. Barba, a case worker checked Shawn Frank in to Oakcrest Manor.
Appellants couch the facts as if Appellee was normal, lucid and had full
2
This case is discussed in further detail below in Section I.D.1.
BRIEF OF APPELLEE PAGE 17
faculties and he simply elected to move in to Oakcrest Manor to support
their argument that the agreement at issue should be enforced. Mrs. Barba’s
testimony proves this is simply not the case.
D. Appellants’ “lucid interval” argument fails.
Appellants essentially argue to this Court that a known schizophrenic,
whom even they admit lacked capacity 6 weeks after his admission to their
nursing home, had, at the time of signing their admission paperwork, a
“lucid interval,” rendering Appellee temporarily competent when he was
asked to sign their 15-page Admission Agreement. The foundation of
Appellants’ argument is built around the observations of their nursing home
Administrator, Terry Rowan (who has no medical training), and their
records that indicate Shawn Frank was “alert” and “answered questions”,
was “cooperative” and showed no “behavior problems.” In doing so,
Appellants ignore the testimony and opinions of the only two trained
medical professionals whom have offered opinions (Dr. McRoberts and Dr.
Mansfield), both of whom opine that Shawn Frank was totally incapacitated
and, further, “can even appear lucid, responsive and as if they have full
capacity when, in fact, they do not,” based on a reasonable degree of medical
probability, and based on his mental condition. Their provided “proof,” at
best, fails to substantiate a “lucid interval,” but practically speaking,
provides no evidence of his mental condition/mental capacity.
BRIEF OF APPELLEE PAGE 18
Appellants admit that “Frank had battled mental illness prior to his
admission to Oakcrest Manor.” (Brief of Appellant at 12). Yet they claim that
“the facts show he was still capable of lucid intervals. . .” Id. Appellants
provide no proof of this assertion whatsoever. There is not a single piece of
evidence that a person with Shawn Frank’s condition was capable of “lucid
intervals.” Rather, they take the same testimony that fails to establish that
Shawn Frank contracted during a “lucid interval” and claim that same
insufficient evidence also establishes that he was capable of having “lucid
intervals,” which is not only unsupported by the medical testimony, but
contrary to it.
1. The Affidavit of Terry Rowan must be disregarded and
certainly does not support a “lucid interval” argument.
Terry Rowan’s affidavit is evidence of nothing. Terry Rowan is the
Administrator of Oakcrest Manor. By its own terms, the affidavit establishes
that Terry Rowan has no relevant or admissible opinion. Terry Rowan’s only
area of knowledge, by the statements in the affidavit itself, establish that he
has no medical knowledge of any kind, yet Mr. Rowan opines that Appellee
was “lucid” during their meeting. (CR 131). His statement is, at best,
speculative, particularly given his complete lack of medical expertise. Mr.
Rowan’s opinion would not be admissible at trial on this issue, and should
not be considered in this appeal.
BRIEF OF APPELLEE PAGE 19
Mr. Rowan’s testimony is that “Frank was able to follow along and
participate in the conversation.” Id. As noted by Dr. Mansfield, Shawn
Frank’s condition could make him appear “lucid, responsive and as if they
have full capacity when, in fact, they do not.” (CR 196-97, Appellee App D).
He further patently speculates that Shawn Frank “understood Rowan’s
questions”, for which there is no baseline, no verification, and being stated
by a person with no medical training to make such an evaluation or render
such an opinion.
Appellants rely on Harrell v. Hochderffer, 345 S.W.3d 652, 661 (Tex.
App.—Austin 2011, no pet) for a recitation of the law regarding what is
required to show incapacity, but they ignore the central findings of this
Court in that case. In Harrell, the evidence of incapacity was that the alleged
incapacitated person signed his name as “G” even though he had no “G” in
his name. Further, the alleged incapacitated person had a guardian ad litem
appointed 4 months earlier. This Court noted that evidence of capacity
“must transcend mere suspicion,” that evidence “so slight as to make an
inference a guess” do not constitute evidence. Id. This Court found the
evidence in Harrell insufficient, and that evidence was far more compelling
than the observations of persons with no medical training, particularly when
weighed against two qualified medical opinions as exist in this record.
BRIEF OF APPELLEE PAGE 20
More importantly, the Appellants also cite In re Estate of Gray, 279
S.W.2d 936 (Tex. App.—El Paso 1955, writ ref’d n.r.e.) for the proposition
that an incapacitated person may have a “lucid interval”, rendering such
person with capacity during that interval. Even a cursory reading of this
opinion demonstrates that Appellants’ arguments fail.
In Gray, the Court examined at length the capacity of a testator.
Directly demonstrating Appellee’s position that the “evidence” proffered by
Appellant is insufficient as a matter of law, the Court stated:
Now it must be observed with reference to the
preceding points and the matters involved therein
that it is a matter of law as to whether or not a lay
witness has qualified himself so as to testify and give
opinions as to lack of sanity of a testator. Here the
court ruled that the witnesses involved had not had
enough contact and observation to so qualify, and
excluded their opinions on such grounds. . .
Id. at 940. The Court’s holding was referring to not 1, but 2 witnesses whose
testimony should be excluded as the witnesses had neither qualified as an
expert witness, nor had sufficient familiarity with the testator to pass
judgment on the testator’s state of mind when they made observations such
as “her memory seemed to be defective”, or that “something was wrong
with her” as she asked the same question twice. Id. at 939. In both cases, these
witnesses had met the testator on previous occasions (unlike Mr. Rowan or
any nurse at Oakcrest Manor), yet the Court still found lack of familiarity
BRIEF OF APPELLEE PAGE 21
with the testator for their “observations” to be of any relevance to the issue
of capacity of the testator.
Mr. Rowan’s statements should not be permitted as a lay opinion
either. Mr. Rowan has no prior knowledge of Shawn Frank, and Appellants
seek to admit his observations of a person who did not know, and had never
met, Shawn Frank as evidence of Mr. Frank’s lucid mental state and capacity.
This is particularly true given the expert testimony of Dr. Mansfield, who
opines conclusively that people with Plaintiff’s condition can often appear
lucid, even when they are not.
2. Appellants’ argument that other records generated by them
show “lucid interval” also fail to substantiate their claim
and are not qualified opinions or observations.
Appellants also refer to assessments of Shawn Frank that appear in
nurse’s notes as further evidence of “lucid interval.” Their claim is that the
following references support their position: Frank “Answers Questions:
Readily,” has apparent quick comprehension, is “cooperative,”
“independent mostly,” and shows “no behavior problems.” None of these
references, on their face, address whether Shawn Frank “had sufficient mind
and memory at the time of execution to understand the nature and effect of
[his] act,” as required under Texas law. See Harrell, 345 S.W.2d at 661 (noting
that the evidence must transcend mere suspicion); see also, In Re Estate of
Gray, 279 S.W.2d at 940 (excluding analogous evidence as the witnesses
BRIEF OF APPELLEE PAGE 22
lacked any expert credentials to attest on capacity issues and their personal
knowledge of the testator was too limited to provide reliable observations of
the testator).
In this instance, Appellants’ alleged proof centers around untrained,
non-expert witnesses, all of whom had no prior contact with Shawn Frank.
As such, the proffered evidence of Appellants has no bearing on the issue of
Shawn Frank’s capacity. However, the testimony of his mother and two
independent, qualified physicians have direct bearing.
E. The evidence establishes Shawn Frank lacked capacity to
contract on the date and time of his execution of the agreement.
Simply, the most qualified evidence of capacity comes from the expert
opinions of Dr. McRoberts and Dr. Mansfield, who find clearly, and
medically, that Shawn Frank lacked capacity. Second to the expert
testimony, Shawn Frank’s mother, and guardian, is in the best position to
know his state of mind that day due to her direct knowledge of her son and
his nearly 20-year history of incapacitating mental illness. Although
Appellants contend Shawn Frank had capacity that day, their own records
establish not only his incapacitating mental illness, but their knowledge of it
when they required he sign the admission agreement waiving his
Constitutional rights. In response, Appellants only offer the affidavit of a
non-medically trained, non-expert witness, Terry Rowan, the nursing home
administrator who was responsible for getting Mr. Frank to sign the at-issue
BRIEF OF APPELLEE PAGE 23
agreement, and a few vague references from nurse’s notes that do not
contain any information relevant to the question of Shawn Frank’s capacity.
And even if they did, their observations are made by persons with no
previous knowledge of Mr. Frank, rendering them useless as was the case in
In Re Estate of Gray, where the witnesses at issue had met the testator on at
least 1 prior occasion. In short, the evidence conclusively establishes Shawn
Frank’s lack of capacity that day, rendering the admission agreement void.
II. THERE IS NO WAIVER OF ANY “RIGHT TO VOID” THE
ADMISSION AGREEMENT, NOR IS APPELLEE SOMEHOW
ESTOPPED FROM ESTABLISHING IT IS VOID, NOR BOUND BY
THE DIRECT-BENEFITS ESTOPPEL THEORY.
In an attempt to sidestep the issue that Shawn Frank lacked capacity
to contract in the first place, Appellants’ contend in their second issue that
Appellee somehow waived his right to void the contract. Their contention is
based on three positions:
(1) That a contract made by a person who lacked capacity is merely
voidable and, therefore, some step must be taken to disaffirm it or
it remains valid.
(2) By counsel for Appellee pleading an alternative theory of recovery
in the underlying case of breach of a contract that Appellants
contend exists, he is somehow estopped from establishing that the
contract is void.
(3) The Direct-Benefits Estoppel argument precludes Shawn Frank
from invalidating the agreement even though this theory only
applies to third-party beneficiaries to an agreement.
Appellants arguments not only fail, but do not make any logical sense.
BRIEF OF APPELLEE PAGE 24
A. Appellants’ “void v. voidable” argument is not valid.
In their first point, Appellants contend that contracts made by
incompetent persons are generally voidable, not void. Their only authority
for this position is a single opinion from Amarillo issued nearly 60 years ago,
Gaston v. Copeland, 335 S.W.2d 406 (Tex. Civ. App.—Amarillo 1960, writ ref’d
n.r.e.), which has never been relied upon for this position, and is contrary to
the law. The Texas Supreme Court directly addressed this issue in In re
Morgan Stanley & Co, 293 S.W.3d 182 (Tex. 2009). In stark contrast to the
Gaston opinion, the Texas Supreme Court noted that defenses to a contract
as a whole, like incapacity, render the entire contract void or unenforceable.
Id. at 185. In so doing, the Texas Supreme Court also noted that the United
States Supreme Court “rejected the notion that the enforceability of the
arbitration agreement depended on the distinction between void and
voidable contracts.” Id. (citing Buckeye Check Cashing v. Cardegna, 546 U.S.
440, 448 (2005)). Hence, Appellants’ contention is wrong, which is the
foundation of their argument on this point.
B. An incapacitated person can no more disaffirm an agreement
than bind himself to it in the first place.
Further, Appellants’ extended position (that, as such a contract is
merely voidable, thus requiring some action to disaffirm the contract),
makes no logical sense. If this were true, their argument would literally
mean that if an incapacitated person contracted, that same incapacitated
BRIEF OF APPELLEE PAGE 25
person would then have to take an affirmative step to disaffirm the contract.
The whole point of incapacity is that the incapacitated person cannot
properly understand the effects of his or her actions. The Court can no
further rely on the disaffirmation of an incapacitated person than it can the
original action sought to be disaffirmed.
Appellants rely on Oram v. General American Oil Company of Texas, 513
S.W.2d 533 (Tex. 1974). This case is in no way analogous. Oram dealt with a
landlord that was incapacitated when he entered into a contract. However,
after regaining capacity, he continued to seek the benefits of that agreement
with full knowledge of its terms. As such, the Court found a ratification of the
agreement that would have been otherwise unenforceable. Id. at 534. Unlike
this case, Oram involved an incapacitated person that regained capacity and
lived under a contract’s terms for several years after, whereas in this case,
Appellee did not have capacity at execution of the agreement, did not have
it for many years prior, and has not (nor will not) ever regain capacity.
C. Appellee’s previous pleading of breach of contract does not
create an estoppel as it is a permissive “alternative theory”,
subsequently dropped by Appellee.
Appellants contend that by pleading breach of contract in the
underlying case, Appellee is somehow estopped from contesting capacity or,
in the alternative, has ratified the contract. However, Texas law expressly
permits the assertion of “alternative theories.” The Rules provide:
BRIEF OF APPELLEE PAGE 26
A party may set forth two or more statements of a
claim or defense alternatively or hypothetically,
either in one count or defense or in separate counts
or defenses. When two or more statements are made
in the alternative and one of them if made
independently would be sufficient, the pleading is
not made insufficient by the insufficiency of one or
more of the alternative statements. A party may also
state as many separate claims or defenses as he has
regardless of consistency and whether based upon
legal or equitable grounds or both.
TEX. R. CIV. P. 48. This Rule is equally applicable even when the alternative
theories are inconsistent. Zimmerman v. First American Title Ins., 790 S.W.2d
698 (Tex. App.—Tyler 1990, writ denied); see also, Regency Advantage L.P. v.
Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996). The express
permission granted by the Texas Rules of Civil Procedure to plead
alternative theories invalidates Appellants’ argument, particularly coupled
with the fact that Appellee has amended her petition and dropped any
breach of contract claim, or any contractual remedies, rendering this
argument both invalid and moot.3
D. The Direct-Benefits Estoppel argument does not apply.
Lastly, Appellants contend that Appellee is bound to the
unenforceable arbitration provision due to the direct-benefits estoppel
theory, which is wholly misapplied. Each of the cases cited by Appellants
3
Prior to the filing of this Brief, Appellee filed an Amended Petition in the underlying
case that removes any claim based in any contractual theory.
BRIEF OF APPELLEE PAGE 27
addresses a singular point – a non-party who seeks the benefits of a contract
is also bound by that contract’s arbitration provision. While true, it is
inapplicable.
In this case, Shawn Frank is not a non-party or a third-party beneficiary
to this alleged contract. He is the claimed party. These laws are intended for
third-party beneficiaries of a contract. Appellants contend nonetheless that
it applies to Shawn Frank as he, a continuing incapacitated person,
continued to get care from this nursing home. Well, of course he did. He is
incapacitated and cannot even make his own choice as to where he can live
or who can render care to him, nor does he have other living arrangements.
More importantly, as an incapacitated person, he no more sought the
benefits of this agreement than agreed to it in the first place as he lacks
capacity for either and was moved out of this facility by his guardian after
his recovery from his injuries at issue in this matter.
III. THE ARBITRATION AGREEMENT IS VOID AND FEDERAL
PREEMPTION OF STATE LAW BY THE FEDERAL
ARBITRATION ACT ARGUMENTS FAIL.
To reach the issues of (A) the applicability of Chapter 74’s bar of non-
compliant arbitration provisions and/or (B) the applicability of Federal
preemption based on the Federal Arbitration Act (“FAA”), this Court would
have to find Shawn Frank, an incapacitated person, had capacity. If this
Court does, then it must address first the applicability of Chapter 74’s
BRIEF OF APPELLEE PAGE 28
mandates regarding arbitration provisions and whether they are preempted
by the FAA. The FAA will preempt only in the instance of an interstate
commerce transaction, and Appellants’ arguments in this regard stretch the
law and authority in this area far beyond its finite elastic limit.
The simple facts in this case are that Plaintiff Shawn Frank is and was
a Texas resident, this is a Texas health care facility, and Plaintiff Shawn Frank
did not receive Federal Medicare benefits.
A. Texas Civil Practice and Remedies Code § 74.451 bars
enforcement of this arbitration provision.
Section 74.451 definitively prohibits a health care provider from
enforcing an arbitration provision, unless that provision was also signed by
the patient’s attorney, which was not done in this case, and clearly not in
dispute. The statute mandates:
No physician, professional association of
physicians, or other health care provider shall request
or require a patient or prospective patient to execute
an agreement to arbitrate a health care liability claim
unless the form of the agreement delivered to the
patient contains a written notice in 10-point boldface
type clearly and conspicuously stating:
UNDER TEXAS LAW, THIS AGREEMENT IS
INVALID AND OF NO LEGAL EFFECT UNLESS IT
IS ALSO SIGNED BY AN ATTORNEY OF YOUR
OWN CHOOSING. THIS AGREEMENT CONTAINS
A WAIVER OF IMPORTANT LEGAL RIGHTS,
INCLUDING YOUR RIGHT TO A JURY. YOU
SHOULD NOT SIGN THIS AGREEMENT
WITHOUT FIRST CONSULTING WITH AN
ATTORNEY.
BRIEF OF APPELLEE PAGE 29
TEX. CIV. PRAC. & REM. CODE § 74.451(a). Furthermore, this statute provides
that a violation of section (a) constitutes a violation of the Texas Occupations
Code (and therefore requires sanctions and penalties thereunder) and also
constitutes a violation of the Texas Deceptive Trade Practices Act. Id. at (b)
and (c).
A cursory read of the at-issue Admission Agreement clearly
establishes two things: (1) the arbitration provision does not comply with
Section 74.451(a); and (2) the Admission Agreement was not signed by an
attorney at all, let alone one of Shawn Frank’s choosing. (CR 108, App 2).
This voids the arbitration provision as a matter of law and Appellants’
Motion should be denied.
B. The FAA does not preempt Chapter 74 due to a lack of
interstate commerce.
A number of courts have found that, in limited instancdes, the Federal
Arbitration Act preempts the state law, giving preference to the
enforceability of an arbitration provision. As the Appellants point out, this
preemption stems from arbitration clauses in contracts “that affect interstate
commerce.” In re L & L Kempwood Assoc, L.P., 9 S.W.3d 125 (Tex. 1999).
Curiously, the Appellants site a number of Texas cases, however, do not
address the most recent – The Fredricksburg Care Company, L.P. v. Perez, 461
S.W.3d 513 (Tex. 2015), reh’g denied (June 26, 2015). Although Perez finds
Federal preemption in that case, it is exceedingly clear from its holding that
BRIEF OF APPELLEE PAGE 30
the preemption was based on the resident receiving Federal Medicare
benefits, an unquestionably Federally-funded program.
In this case, Plaintiff Shawn Frank received only Medicaid funds and
the State of Texas, in its own documents, not only calls Medicaid a “state
program”, the Attorney General issued a certification, certifying that the
Health and Human Services Commission is “the single state agency
responsible for administering the plan,” and that “The legal authority under
which the agency administers the plan on a statewide basis is: Texas
Government Code, Section 531.021(b).” (CR 120-22, Appellee App E).
Further, in looking at the description of the plan in the “Organization and
Functions of the State Agency and the Organization Chart of the Agency”
along with the organization chart itself, there is simply no way to view
Medicaid as a Federal program, giving this nursing home the protections of
a non-compliant arbitration provision in an admission agreement their
Administrator had signed by a diagnosed schizophrenic upon admission. Id.
Appellants’ principal support for their argument comes first from In re
Nexion Health at Humble, Inc. 173 S.W.3d 67 (Tex. 2005). In re Nexion involved
a patient directly receiving Medicare benefits so the Court never addressed
nor confronted the applicability of Federal preemption when dealing simply
with Medicaid. Id.
BRIEF OF APPELLEE PAGE 31
Second, the Appellants rely on In re Tenant Healthcare, Ltd., 84 S.W.3d
760, 765 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Appellants cavalierly
site this case to this Court for the proposition that the Federal preemption
extends to cases involving both Medicare and Medicaid. In re Tenant
Healthcare is an arbitration provision contained in an employment agreement
between the nursing home, and its employee, a distribution clerk. The Court
did not have to address the interstate commerce issue for two reasons: (1)
this nursing home unquestionably engaged in interstate commerce; and
more importantly, (2) this issue was not challenged by the employee seeking
to invalidate the arbitration provision. The court stated:
Here, Tenet's first amended motion to compel
arbitration alleged that Park Plaza Hospital, where
Valyan worked, treated patients who lived out-of-
state; received goods and services from out-of-state;
received payments from out-of-state insurance
carriers; and received federal funds such as Medicaid
and Medicare. Valyan does not challenge these
allegations.
Id.
Similarly, the Appellants cite In re December Nine Co., Ltd. 225 S.W.3d
693 (Tex. App.—El Paso, no pet) for the proposition that Federal preemption
is granted due to the existence of Medicaid benefits. While the Court in this
case declines to limit Federal preemption based on Federal funding to
Medicare cases only, and “sort of” suggests that it may apply in cases with
Medicaid funding, the Court notes mainly that the arbitration agreement at
BRIEF OF APPELLEE PAGE 32
issue indicated on its face that it was to be “governed by Federal arbitration
law.” Id. at 698. More importantly, In re December Nine was another example
of the Court applying this decision only in the context of an employment
contract, in this case, where two employees were fired for whistle-blowing.
Finally, Appellants put, up front and center, the case of United States v.
Girod, 646 F.3d 304 (5th Cir. 2011). This case is equally inapplicable.
Appellants cite this case for the singular proposition that Medicaid is
federally funded, therefore anything tied to it affects interstate commerce.
But Girod is inapplicable on one significant point. As directly stated in that
opinion, the Louisiana Medicaid program (at issue in that case) is a joint
Federal-State program, in stark contrast to the Texas Medicaid program, as
noted above. (CR 120-22, Appellee App E).
The authority cited by the Appellants can not be stretched to the limit
of their position. And the law on this issue simply does not address, let alone
support, Appellants’ position. Not one of the cited cases reaches, or holds,
that receipt of Medicaid benefits would give rise to interstate commerce
implications sufficient to trigger Federal preemption. The reason is,
undoubtedly, that, in Texas, Medicaid is a State program in contrast to
Medicare, which is clearly a Federal program. Appellants request that this
Court address a question of first impression and extend the law in this area
beyond the limits of their own analysis and past the point of appropriate.
BRIEF OF APPELLEE PAGE 33
C. As a matter of policy, validating Appellants’ position would
destroy state’s rights to enforce state law on many issues.
The Appellants’ position is:
(1) We know Medicaid is a State program, but some
of the money came from the Federal Government,
so that’s interstate commerce; and/or
(2) If a nursing home accepts Medicare, even if not for
the benefit of the actual resident/patient at issue,
the nursing home should have blanket protection
from the FAA.
There can be no interpretation of these arguments that lead to anything
other than a massive slippery slope, fundamentally destroying the State’s
rights to enforce its own contract laws. If the Court were to accept premise
(1), the law could be stretched to the extent that a patient in a nursing home
would be subject to Federal preemption on this issue if the resident paid by
credit card as the bank that issued the credit card or processed the credit card
may have been out-of-state, or if the resident paid cash because the bills were
printed by the Fed. In what case could a transaction ever be considered an
in-state transaction? In such case, it would invalidate the State’s ability to
charge sales tax as well.
If the Court were to accept premise (2), this law could be stretched such
that your visit to your own doctor could be governed by a non-conforming
arbitration provision, because your doctor treats an out-of-state patient or
accepts Federal funds on even a single patient. For that matter, the doctor
BRIEF OF APPELLEE PAGE 34
could enjoy preemption because he/she buys supplies from an out-of-state
vendor, hence engaging in interstate commerce.
While it seems ridiculous enough that the Courts agree with the
proposition that accepting federal funding for a patient constitutes interstate
commerce when the patient and health care facility are both from the same
state, stretching these laws to the limit that is done so in Appellants’ Motion
will radically alter states’ rights and the relationship of a patient to his/her
health care provider irreparably and destructively.
CONCLUSION
This is a very simple situation. Plaintiff Shawn Frank was totally
incapacitated at the time of his admission to Oakcrest Manor. This fact has
been found as a matter of law by the Probate Court of Travis County twice.
The Appellants are asking this Court to find a contract between a nursing
home and its totally incapacitated resident enforceable, which was signed
without the presence of a guardian or an attorney. This is simply impossible
and conflicts with contract law.
The evidence clearly establishes Plaintiff lacked capacity when he
executed the agreement at issue, first through Appellants’ own records made
immediately upon Plaintiff’s admission to Oakcrest Manor, second, the
Probate Court’s independent medical examiner (Dr. Roger McRoberts), and
as well through the expert testimony of David E. Mansfield, M.D. and also
BRIEF OF APPELLEE PAGE 35
through the testimony of Plaintiff’s mother, Peggy Barba. Further, the only
expert medical evidence in this case proves that he did not, and that, given
Plaintiff’s condition, he could have appeared to have had capacity even
though medically he did not.
Appellants’ only responses to Appellee’s capacity arguments are that:
(1) there is no evidence that Plaintiff was incapacitated at the date and time
Plaintiff executed the agreement, and (2) Plaintiff “seemed fine” to Terry
Rowan, Oakcrest Manor’s administrator, and a person with no personal
knowledge of Plaintiff when he was admitted, and no medical expertise
whatsoever. The attached evidence establishes both objections without
merit.
Even assuming Appellee had capacity, which he did not, Appellants’
Federal preemption argument likewise fails. This is a case involving a citizen
and resident of the State of Texas and a Texas nursing home. Appellants’
attempt to create a Federal issue due to Appellee’s status as a Texas Medicaid
recipient stretches the law on this issue as well as creates far reaching public
policy implications. The law simply does not permit this result.
PRAYER
Appellee Peggy Barba, as Guardian of S.F., respectfully requests that
this Court confirm the order of the trial court denying Appellants’ Motion to
BRIEF OF APPELLEE PAGE 36
Compel Arbitration and for such other and further relief to which she is
entitled.
Respectfully submitted,
RAMSEY LAW GROUP
Jeff Diamant (Of Counsel)
State Bar No. 00795319
John C. Ramsey
State Bar No. 24027762
Joel Pardo
State Bar No. 24083617
7521 Westview Drive
Houston, TX 77055
Phone: (713) 489-7577
Fax: (888) 858-1452
Email: john@ramseylawpc.com
Email: jeff@ramseylawpc.com
Email: joel@ramseylawpc.com
ATTORNEYS FOR PLAINTIFF
Jacques G. Balette
MARKS, BALETTE, GEISSEL &
YOUNG, PLLC
State Bar No. 00798004
10000 Memorial Drive, Suite 760
Houston, Texas 77024
Phone: (713) 681-3070
Fax: (713) 681-2811
Email: JacquesB@marksfirm.com
BRIEF OF APPELLEE PAGE 37
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument
was served on the below parties in accordance with the Texas Rules of
Appellate Procedure 9.5(c) on September 26, 2016 via electronic mail,
facsimile and/or certified mail, return receipt requested.
Breck Harrison
Jack Skaggs
Jorge A. Padilla
Jackson Walker, LLP
100 Congress, Suite 1100
Austin, Texas 78701
Attorney for Appellants
______________________
Jeff Diamant
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Texas Rules of
Appellate Procedure 9.4(i) because, exclusive of the matters excepted from
the word count limitations of the Rule, this brief contains 8,248 words.
______________________
Jeff Diamant
BRIEF OF APPELLEE PAGE 38
NO. 03-16-00514-CV
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN
OAK CREST MANOR NURSING HOME, LLC, DAY LIFE
CORPORATION, TERRY ROWAN, NORMA ELEMENTO, AND
GROVER MOORE,
Appellants,
v.
PEGGY BARBA, AS GUARDIAN OF S.F.,
Appellee.
On Appeal from the Probate Court,
Travis County, Texas, Cause No. C-1-PB-16-00776
APPENDIX
A.  Records of Oakcrest Manor Regarding Shawn Frank
B.   Affidavit of Peggy Barba
C.  Physician’s Certificate of Medical Examination (completed by Dr.
McRoberts)
D.  Affidavit of David E. Mansfield, M.D.
E.   Selected Documents from the 1,334-page Texas Medicaid State Plan,
Attorney General’s Certification
BRIEF OF APPELLEE PAGE 39
APPENDIX TAB A
FACE SHEET Page I of I
12/13/13 4:12PM
Oakcrest Manor Nursing Home RI6100A
Res No.: Admit Date: 12/13/13 3:00 pm Admitted From: 02
Preferred Name: Loc: E6 B ReAdmitted: Readmitted From:
Plr: Discharged: Discharged To:
Sex: M Discharge Status:
D.O.B.: SSN:
MEDICAL INFORMATION
Med Record no: Allergies: AdmitDx:
Height: in. BACLOFE;W
Admit Weiglrt: lbs. Discharge Dx:
PrimaryP!rys: CHUDLEIGH, JAMES (512) 699-8819
FNP DAVID PFEIFER 512-291-7493 Current Dx:
LEANDER, TX 78641 296.52 Bipolar Affec, Depr-Mod
AJfenmte Plrys: PFERIFER, FNP, DAVID (913) 486-1801 295.40 Ac Schizophrenia-Unspec
76201 DEER RUN 561.58 GERD
AUSTIN, TX 78641 300.9 Neurotic Disorder Nos
Referring Phys: ( )- 281.0 Pernicious Anemia
QL Hospital stay:
From/Thru:
Rehab Potential: GOOD
Admitted with: 0 Catheter preselll O Contractures 0 Restraillf Orders D Pressure Sores (other titan Stage 1)
0 Received pneumococcal vaccine D Received influenza immunization 0 In facility
DEMOGRAPHICS SERVICE PROVIDERS and PREFERENCES
Marital Status:Never married Couuty: TRAVIS Pharmacy AMERICAN PHARMACEU" (512) 928-8282
Race: Caucasian Primary Lang: English Dentist Jackson DDS, David M (512) 535-5530
Religion: N/A Birtlrplace: CA Optometrist Baker 0. D., Linda L (210) 479-7907
Occupation: DISABLED Podiatrist HeralthSync (836) 436-0351
0 u.s. Citizen 0 MilitarySrv. Psychiatrist FLOCA, FRANKS (512) 795-4344
1-..;;;;;..._ _ _ VERI CARE (800) 257-8715
BILLING INFORMATION Phys, Occu Ther SENIOR REHAB SOLUTIC (888) 210-9758
AIR Type: FV CMG: Resources:
Speech Therapi! SENIOR REHAB SOLUTIC (888) 210-9"158
Medicare#: Ancillary AIR Ty'Pe:
Church NO PREFFERENCE
Medicaid#: Ancillary Co-b1s AIR Type:
Hospital SETON NORTH WEST HC (512) 324-4455
Ins 1:
Grp: Ambulance ACADIAN (512) 926-5652
Pol:
Mortuary AUSTIN-PEEL AND SON (512) 419-7224
Ins 2:
Pol: Grp: Part D Plan:
Recurring Room Cltg: Effective: RxBIN: RxPCN:
0 AdvBill D Resident is SelfResponsible
Card/wider ID:
Trust Fund: 0 Apply Interest 0 Max Balance Reminder Group No: Issuer:
RESPONSIBLE PARTY SECOND CONTACT THIRD CONTACT
Relationship: Mother Relationship: Relationship:
Pltoite: (Day) Phone: (Day) Phone: (Day)
(Eve) (Eve) (Eve)
(Cell) (Cell) (Cell)
ADDITIONAL INFORMATION
DNR Status FULL CODE
Advanced Directive NONE
Nursing Alert SMOKER
Medicaid ID
SSN
C NTIAL OCM_Frank 00077
RESIDENT- DATA COLLECTION
Indicate below all body marks such as old or
recent scars (surgical and other), bruises, d·is-
cotorations, abrasions, pressure ulcers or any
questionable markings. Indicate size, depth (in
PAIN ems), color and drainage.
(As described by resident/representative) COMMENTS: ____________________
Fre51uency:
11 No pain D Daily; but not
D Less than daily constant
D Constant
Location: _ _ _ _ _ _ _ _ _ __
Intensity:
D No pain D Severe pain
D Mild pain D Horrible pain SPECIAL TREATMENTS & PROCEDURES:
D Distressing pain D Excruciating
pain
Pain on admission?
D No DYes, describe _ _ _ _ __
Paralysis/paresis-site, degree _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Contracture(s)-site, degree_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Congenital anomalies _ _ _ _ _ _ _ _ _ _ -=--=-----=---------
Prosthesis: D Glasses D Dentures: D Upper D Lower D Hearing aid
Other==================================================~
TRA)ISFERS·ABLE TO TRANSFER AMBULATION-ABLE TO AMBULATE SUPPORTIVE DEVICES USED:
~Independently 1\lfndependently D Elastic hose D Footboard
D 1 person assist D 1 person assist D Bed cradle D Air mattress
D 2 person assist D 2 person assist D Sheepskin D Eggcrate
D Total assist D With device D Hand rolls D Trapeze
WEJGHT BEARING-ABLE TO BEAR
Type_ _ _ _ _ _ _ _ _ __ DSiing
'16 Full weight D Wheelchair only Traction: Where _ _ _ _ _ __
D Partial weight D Wheelchair/propels self When,_ _ _ _ _ __
Ot~hie~rijij~i~ijijiji
D Non-weight bearing D Bedrest 0
0 Continued on Reverse
CONFIDENTIAL OCM_Frank 00093
OAKCREST MANOR NURSING HOME DISCHARGE SUMMARY
.,
"
Condition on discharge:
..-o-
Discharge diagnosis(es):
'Scutvv- - 0 o~( l \0. ~
I
'.
Prognosis:
Date
CONFIDENTIAL OCM_Frank 00076
(
Record No.
Form 62SP 0 BRIGGS, Des Moines, lA 50306 (800) 247-Zl43 www.BriggsCorp.com
R404 PRINTED fll U.SA •
CONFIDENTIAL NURSE'S NOTES
OCM_Frank 00135
All Disciplines to Use
Pro ress Notes
Date Time Notes should be signed
Attend ing Physician: Room #
. ~-··- ~-··-
NFIDENTIAL OCM_Frank 00151
10/1712011 -Progress Notes 1 or 2
(_
Personal
Gene~lappearance: --````,r--````~f---``````-r~;,~TT````--``
``G~e;L~a``~
0 Spanish
Emotional &aws; ````41````````````~-=``````````````````
~ntme~I-~··-----````~Jr----````~--~------~--~----~---.--------------
Hearing: DAverage
Please Note How Did Resident React 1 Cope Wrth Any Physical And I Ot Sensory Losses
Social Background
\
CONFIDENTIAL OCM_Frank 00152
Cate: -----Name: - - - - - - - - - - - - - - - - - - OOB: +----Admission Date;----
Community Involvement (Clubs. Gov't, C:tc.): _
Military __ d_·---------------------::="'7•---ll--------------
If Supportive, C:xp\ain
of Resident
CONFIDENTIAL OCM_Frank 00153
APPENDIX TAB B
State of Texas §
§
Hays County §
AFFIDAVIT OF PEGGY BARBA
Before me, the undersigned authority, did personally appear the affiant
Peggy Barba, who upon being by me duly sworn, upon oath states the following:
"My name is Peggy Barba. I am over 18 years of age and competent to
provide this affidavit.
I am the mother of Shawn Frank. Shawn has had a history of mental illness
since at least 16 years old. He was diagnosed with schizophrenia and bipolar
disorder at least 15-20 years ago, to the best of my recollection. His diagnosis has
continued through today. Shawn was a schizophrenic and bipolar on the date
of his admission to Oakcrest Manor.
While Shawn was admitted to Shoal Creek Hospital, prior to his admission
to Oakcrest Manor, I received a call from a female case manager who informed
me that Shawn could not stay any longer at Shoal Creek Hospital and had to be
transferred to Oakcrest Manor. I was not given any decision or choice in this
matter, I was simply informed of the impending transfer by the case manager. I
was not Shawn's legal guardian at the time as he was an adult at that time.
Shawn was mentally incapacitated at the time and on the date of his admission
to Oakcrest Manor, and had been for many years prior.
Neither I nor any legal guardian for Shawn was present when he was
admitted to Oakcrest Manor and I was never informed that he had been required
to sign any paperwork, nor was I ever provided a copy of any such paperwork.
As his mother, and based on his mental diagnosis for many years, Shawn would
not have had capacity to understand any such paperwork or agreement on
December 13, 2014.
Approximately 1 week or less after his admission to Oakcrest Manor, I
went to visit my son. I was unhappy with his conditions and concerned for his
safety. So I immediately began finding out how to apply for legal guardianship
of Shawn, which I filed shortly thereafter.
I received a call from Shawn warning me that he was planning on eloping
from Oakcrest Manor and had intent to jump off a bridge about a day or so prior
to him jumping off the bridge that caused the injuries in this case. I immediately
called the Oakcrest Manor administrator and informed him of Shawn's call and
intent. He simply told me that Shawn was fine and getting his haircut and that
I had no reason to worry. I re-urged my request for them to watch Shawn
carefully, which was apparently disregarded. In fact, -I called the administrator
twice with this same warning and urging him to watch Shawn carefully. Then
Shawn eloped from Oakcrest Manor and jumped from a bridge. To my
knowledge, Oakcrest did not even know he was gone until about 9-lO:OOam the
next morning. In my call(s) with the administrator of Oakcrest Manor, I
reminded him that Shawn is suicidal and has a history of elopement and trying
to hurt himself.
Affiant Further Sayeth Not,
This instrument was acknowledged before me on the { day of July 2016.
otary u c, State of Texas
APPENDIX TAB C
PHYSICIAN'S CERTIFICATE OF MEDICAL EXAMINATION
In the Matter of the Guardianship of For Court Use Only
Court Assigned: _ _ _ _ _ __
an Alleged Incapacitated Person
To the Physician
The purpose of this form is to enable the Court to determine whether the individual
identified above is incapacitated according to the legal definition {set out on page 4},
and whether a guardian should be appointed to care for that per:;<;m.
1. General Information
Physician's Name 1>r. 'f~ /,.:.woN P..`` Phone:
Office Address bO \ S I S~
``rl--. r)C 'f'g.'vo\
[J'/'cs 0 N0-·-1 am a physician (u(rently licensed to practice In the State of Texas.
Proposed Ward's Name ~&utiL
Date of Birth Age. Gender ~ 0 F
ProposedWard'sCurrentResidence: wa,c& Dei- tre-;t MM\oy= IJ>!J.t wilt tl\.0-\:7 rezW("-
llast examined the Proposed Ward on --------\'-'I.,;"Wo..::;..___,, 2o__IL
at 1<11 Medical facility D the Proposed Ward's residence 0 Other:
BYES D NO---·The Proposed Ward is under my continuing treatment.
i"'-.jl9'-'~'--"t:.Ar\=_,_'JLf-"S=J't'-'cL""''-''*==:>=-----
If the mental ~iagnosis includes dementia, answer the following:
Cl YES \l'NO ---It would be in the Proposed Ward's best Interest to be placed in a secured faCility for the elderly
or a secured nursing facility that specializes in the care and treatment of people with dementia.
0 YES )l! NO --·It would be in the Proposed Ward's best interest to be administered medications appropriate tor
the care and treatment of dementia.
DYES ~0 ---The Proposed Ward currently has sufficient capacity to give informed consent to the
administration of dementia medications.
PAGElOF4
G 'd
PHYSICIAN'S CERTIFICATE OF MEDICAL EXAMINATION @evisian Novem~ 201J
4. Cognitive Deficits
a. The Proposed Ward is oriented to the following (check all that apply):
a'Person Zlime .af>lace D Situation
b. The Proposed Word has a deficit in the following areas (check all areas in which Proposed Ward has a deficit):
0---Short·term memory
o ... Long-term memory
o... Jmmediate recall
0--- Understanding and communicating (verbally or otherwise)
0-- Recognizing familiar objects and persons
D·- Performing simple calculations
D·- Reasoning logically
~-Grasping abstract aspects of his or her situation
~-Interpreting idiomatic expressions or proverbs
iii!'-· Breaking down complex tasks down into simple =....p!~====------­
,........._ &>k'?
9. AbilitY to Attend Court Hearing
DYES ti'No ----The Proposed Ward would be able to attend, understand, and participate in the hearing.
12!'YES [J NO ----Because of the Proposed Ward's incapacities, I recommend that the Proposed Ward~ appear
at a Court hearing.
Jlfves 0 NO--- Does any current medication taken by the Proposed Ward affect the demeanor of the Proposed
Ward or his or her ability to participate fully in a court proceeding?
10. What is the least restrictive placement that you consider is appropriate for the Proposed Ward:
1:¥-'- Nursing home level of care
D--- Memory care unit
£!'--Other 'f>'1&\,.;~<- ``
11. Additional Information of Benefit to the Court: If you have additional information concerning the Proposed
Ward that you believe the Court should be aware of or other concerns about the Proposed Ward that are not
included above, n an additional page.
Phy Date
~d I.AA1e\\ 'f-lf\?..\Ju.b
Ucense Number
PAGE40F4
me ·oN l~VJh1lVl~ NOllS
APPENDIX TAB D
03/23/2009 01:09 5755224434 ~1ANSFIELD F'AGE 02/03
State of New Mexico §
§
Lincoln County §
AFFIDAVIT OF DAVID E. MANSFIELQ. M.P.
Before me, the undersigned authority, did personally appear the
affiant David E. Mansfield, M.D., who upon being by me duly sworn, upon
oath states the following:
'
"My name is David E. Mansfield, M.D., I am over 18 years of age and
ccmpetent to provide this affidavit.
I am a Medical Doctor who is Board Certified in Family Practice and
Wound Care. I have extensive experience in these areas, as well as extensive
experience in nursing home I skilled nursing facility protocols, procedures,
and patient care. I have worked with patients and residents of all types,
including many patients with significant mental illnesses. A copy of my
Curriculum Vitae is attached hereto as Exhibit A, and incorporated herein by
reference.
I am familiar with the facts and circumstances made the basis of
Shawn Frank's claims against Oak Crest Manor, et al. I have reviewed the
records of:
· 1) Oakcrest Manor Nursing Home
2) Seton Shoal Creek Hospital
3) University Medical Center Brackenridge
To reach my opinion herein I relied on my knowledge gained from
over 40 years of practicing medicine as well as my continuing research,
regulat· practice of keeping up-to-date on relevant medical knowledge and
developments; any relevant medical texts, and the records of Plaintiff Shawn
Frank, as noted above.
Shawn Frank is a diagnosed schizophrenic, bipolar and depressive
person. Schizophrenia is a serious disorder which affects how a person
thinks, feels and acts. Someone with schizophrenia, particularly in Shawn
Frank's case, would have difficulty distinguishing between what is real and
what is imaginary. Specifically, Shawn Frank has schizoaffective disorder, in
which a person has symptoms of both sclllzophrenia and a major mood
03/23/2009 01:09 5756224434 HANSFIELD PAGE 03/03
disorder such as depression. In this case, he is also bipolar and depressive.
The result of this is manifested in Shawn Frank as a person who likely
cannot distinguish what is real and what is false, may have delusions,
hallucinations and I or disordered thinking as well as depression and
suicidal tendencies. Persons with Shawn Frank's conditions can even appear
lucid, responsive and as if they have full capacity whe:t:V in fact, they do not.
As such. it is my opinion, to a reasonable degree of medical
probability, based on Shawn Frank's condition, he would lack sufficient
capacity to contract and would require a guardian. It is further my opinion
that, to a reasonable degree of medical probability, Shawn Frank was totally
lm;i:\pT'f c.,P .J_,·,,. .,;,.,
OFFICIAL SEAL
Ci"dy t. Oakes
NOTARY l'IJBUC.Sfllle ofNewMIIilo
N¥.,.,...,_1bp!Jw ~1 2w ..Zo I 1:
1
APPENDIX TAB E
State: Texas
Date Received: 11 December, 2015
Date Approved: 8 January 2016
Date Effective: 1 October, 2015
Transmittal Number: TX 15-0035
15-0035 1/08/16 10/01/15
13-0057MM4
ORGANIZATION AND FUNCTIONS OF THE AGENCY AND
ORGANIZATION OF THE AGENCY
{HHSC) is the state :::~n•:::.nr'\1
the
i'"\\/ClrC"<:>C>!FlM state health human
Commissioner of Health and Human
Legislature, Regular Session, 2003, the
into four new departments
departments the Department of State Health ....:or\/1/"'t:>~
Aging and Services (DADS), Department
(OARS), and Department of Family and l-lrntol"'~tl\ta ... aru•r•"'
operations four
Section .021 the Texas Government
administering federal medical
assistance are granted to
agency, HHSC final authority over the Medicaid
HHSC or out by the other nruar"'''n"
Within State Medicaid
as state
•
•
•
•
•
•
•
•
•
TEXAS l\fEDICAID OPERATING DEPARTl\IENTS
Governor
Single State Agency
Health and Human
Services Commission
Department of Department of Assistive and
and Disability Services Rehabilitative
Department Department
Family ,l'utedi Health