Amedisys West Virginia, LLC v. Personal Touch Home Care of W. Vir., Inc. ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term FILED
_____________________ June 11, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0308 OF WEST VIRGINIA
_____________________
AMEDISYS WEST VIRGINIA, LLC dba AMEDISYS HOME HEALTH OF WEST
VIRGINIA, ST. MARYS MEDICAL CENTER HOME HEALTH SERVICES, LLC, and
LHC GROUP, INC., Petitioners Below, Petitioners
v.
PERSONAL TOUCH HOME CARE OF W.VA., INC. et al., and THE WEST
VIRGINIA HEALTH CARE AUTHORITY, Respondents Below, Respondents
___________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Tod J. Kaufman, Judge
Civil Action No. 19-AA-145
AFFIRMED
_________________________________________________________
AND
_____________________
No. 20-0401
_____________________
PRESTON MEMORIAL HOMECARE, LLC, et al.,
Petitioners, Below, Petitioners
v.
UNITED HOSPITAL CENTER, INC., and THE WEST VIRGINIA HEALTH CARE
AUTHORITY, Respondents Below, Respondents
___________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Carrie L. Webster, Judge
Civil Action No. 18-AA-228
AFFIRMED
_________________________________________________________
Submitted: April 13, 2021
Filed: June 11, 2021
Robert L. Coffield, Esq. Thomas G. Casto, Esq.
Caleb P. Knight, Esq. Anna G. Casto, Esq.
Flaherty Sensabaugh Bonasso PLLC Lewis Glasser PLLC
Charleston, West Virginia Charleston, West Virginia
Counsel for Petitioners Counsel for Respondent Personal
Touch Home Care of W.Va., Inc.
James W. Thomas, Esq.
Neil C. Brown, Esq.
Jackson Kelly, PLLC
Charleston, West Virginia
Counsel for Respondent United
Hospital Center, Inc.
Patrick Morrisey, Esq.
Attorney General
B. Allen Campbell, Esq.
Senior Assistant Attorney General
Charleston, West Virginia
Counsel for Respondents West
Virginia Health Care Authority and
Department of Health and Human
Resources
JUSTICE WOOTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘“‘Upon judicial review of a contested case under the West Virginia
Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may
affirm the order or decision of the agency or remand the case for further proceedings. The
circuit court shall reverse, vacate or modify the order or decision of the agency if the
substantial rights of the petitioner or petitioners have been prejudiced because the
administrative findings, inferences, conclusions, decisions or order are: ‘(1) In violation of
constitutional or statutory provisions; or (2) In excess of the statutory authority or
jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other
error of law, or (5) Clearly wrong in view of the reliable, probative and substantial evidence
on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.’ Syllabus point 2, Shepherdstown Volunteer
Fire Department v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d
342 (1983).” Syllabus, Berlow v. West Virginia Board of Medicine, 193 W.Va. 666, 458
S.E.2d 469 (1995).’ Syl. Pt. 1, Modi v. West Virginia Bd. of Medicine, 195 W.Va. 230, 465
S.E.2d 230 (1995).” Syl. Pt. 1, W. Va. Med. Imaging & Radiation Therapy Tech. Bd. of
Exam’rs v. Harrison, 227 W. Va. 438, 711 S.E.2d 260 (2011).
2. “‘Judicial review of an agency’s legislative rule and the construction of a
statute that it administers involves two separate but interrelated questions, only the second
of which furnishes an occasion for deference. In deciding whether an administrative
i
agency’s position should be sustained, a reviewing court applies the standards set out by
the United States Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed.2d 694 (1984). The court first must
ask whether the Legislature has directly spoken to the precise question at issue. If the
intention of the Legislature is clear, that is the end of the matter, and the agency’s position
only can be upheld if it conforms to the Legislature’s intent. No deference is due the
agency’s interpretation at this stage.’ Syl. Pt. 3, Appalachian Power Co. v. State Tax Dep't
of W. Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).” Syl. Pt. 5, Murray Energy Corp.
v. Steager, 241 W. Va. 629, 827 S.E.2d 417 (2019).
3. “‘If legislative intent is not clear, a reviewing court may not simply impose
its own construction of the statute in reviewing a legislative rule. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the question for the court is whether
the agency’s answer is based on a permissible construction of the statute. A valid legislative
rule is entitled to substantial deference by the reviewing court. As a properly promulgated
legislative rule, the rule can be ignored only if the agency has exceeded its constitutional
or statutory authority or is arbitrary or capricious. W. Va. Code, 29A–4–2 (1982).’ Syl. Pt.
4, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424(1995).” Syl. Pt. 6, Murray Energy Corp. v. Steager, 241 W. Va. 629, 827 S.E.2d 417(2019).
ii
4. “‘Interpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo review.’ Syl. Pt. 1, Appalachian Power Co. v. State
Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995).” Syl. Pt. 2, Steager v. Consol.
Energy, Inc., 242 W. Va. 209, 832 S.E.2d 135 (2019).
5. Where the State Health Plan Home Health Services Standards were
promulgated by the West Virginia Health Care Authority (formerly the West Virginia
Health Care Cost Review Authority) pursuant to a legislative grant of authority, West
Virginia Code §§ 16-2D-1 to -20 (2016 & Supp. 2020), authorized by the Governor, and
formally adopted and given full force and effect by the Legislature, see id. § 16-2D-6(g),
the longstanding, consistent interpretation of those Standards by the West Virginia Health
Care Authority, being neither arbitrary nor capricious, is entitled to judicial deference
pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984).
iii
WOOTON, J.:
In these consolidated cases we are called upon to examine the State Health
Plan Home Health Services Standards (“the Standards”), which were promulgated by
respondent West Virginia Health Care Cost Review Authority (“HCCRA”), now the West
Virginia Health Care Authority (“the Authority”), as part of its duties and responsibilities
pursuant to West Virginia Code §§ 16-2D-1 to -20 (2016 & Supp. 2020). The Standards
were approved by the Governor on November 13, 1996. The Standards govern the
Authority’s consideration of applications from individuals and entities seeking to provide
home health care services in a particular county, and include, inter alia, a methodology for
determining whether there is an unmet need for such services in the county. If the
Authority determines that an applicant has demonstrated the existence of unmet need and
has otherwise satisfied all other requirements imposed by the Standards, the agency issues
a Certificate of Need (“CON”) allowing the applicant to offer services in the county.
Petitioners Amedisys West Virginia, L.L.C. dba Amedisys Home Health of
West Virginia, St. Marys Medical Center Home Health Services, LLC, and LHC Group,
Inc. (“the Amedisys petitioners”) and petitioners Preston Memorial Homecare, LLC and
Tender Loving Care Health Care Services of West Virginia, LLC dba Amedisys Home
Health of West Virginia (“the Preston Memorial petitioners”) (referred to collectively as
“petitioners”) contend that unmet need cannot be established unless the evidence shows
that at least 229 individuals in the county in question are in need of home health care
services. Respondents Personal Touch Home Care of W. Va., Inc. (“Personal Touch”),
1
United Hospital Center, Inc. (“United”), and The West Virginia Health Care Authority
(“the Authority”) (referred to collectively as “respondents”) counter that in an unbroken
line of precedents dating back at least to 2002, the Authority’s position has been that any
number of individuals in need of the services – whether it’s 1 or 100 or 1,000 – can be
deemed sufficient to establish unmet need in the county. According to respondents, the
229 figure is an average county usage figure that comes into play only where another home
health care provider has begun offering services in the county during the preceding 12-
month period; in such case, the Standards require the new applicant to demonstrate a need
at or beyond the 229 average usage figure, a requirement intended to give the recently
established provider sufficient time to develop and grow its business before having to
compete with a newcomer.
With this background in mind, we turn to the factual and procedural posture
in these consolidated cases and then examine the single, dispositive issue presented in both.
After review, and for the reasons explained herein, the decisions of the circuit court in No.
20-0308 and No. 20-0401 are affirmed.
I. Facts and Procedural Background
No. 20-0308
In the first case, the Amedisys petitioners contend that a CON issued by the
Authority to respondent Personal Touch was improper in that Personal Touch failed to
2
demonstrate the requisite unmet need for additional home health services in Cabell and
Wayne Counties.
On August 10, 2018, Personal Touch filed its application for a CON allowing
it to expand its existing home health care services into Cabell and Wayne Counties. See
id. § 16-2D-8(b)(23). In this regard, “[a] certificate of need may only be issued if the
proposed health service is: (1) Found to be needed; and (2) Consistent with the state health
plan, unless there are emergency circumstances that pose a threat to public health.” See id.
§ 16-2D-12(a). According to the calculations contained in the application filed by Personal
Touch, which followed the methodology contained in Section V(C)(1) – (3) of the
Standards, 1 the unmet need for home health care services was 29 individuals in Cabell
County and 55 individuals in Wayne County.
On August 14, 2018, the application was deemed complete, see id. § 16-2D-
13(c), and two days later, on August 16, 2018, the Authority issued a Notice of Review.
1
The methodology actually contains four calculations: the first compares the county
and state home health utilization rates; the second determines the number of potential home
health care recipients needed to reach the state rate; the third determines the actual number
of home health care recipients below the state rate; and the fourth, which comes into play
only where there are agencies in the county which received CON approval within the
previous 12 months, applies an adjustment factor to determine unmet need. See text infra
for a detailed discussion of these calculations. See Standards, V(C)(1) – (4), “Determining
Unmet Need for Home Health Services.” Because none of the existing home health
services providers in either Cabell County or Wayne County had received a CON during
the 12-month period preceding Personal Touch’s application, see text infra, the fourth
calculation was not applicable.
3
See id. § 16-2D-13(d). Thereafter, the Amedisys petitioners sought recognition as
“affected persons,” statutorily defined in relevant part as “health care facilit[ies] located
within this state which provide services similar to the services of the facility under review
and which will be significantly affected by the proposed project.” See id. § 16-2D-2(1)(E).
Of particular relevance to this case, it is important to note that all existing home health care
providers in Cabell and Wayne County, 2 including the Amedisys petitioners, had been
providing such services for more than 12 months preceding Personal Touch’s application
for a CON.
On December 12, 2018, a public hearing was held to determine whether the
application of Personal Touch for a CON, which would allow it to expand its services into
the counties in question, should be granted or denied by the Authority. To establish their
case as affected parties, the Amedisys petitioners called Charles G. Gibbs, a health care
consultant who was recognized as an expert in the field, to testify on their behalf. Mr.
Gibbs took issue with the Personal Touch application in three respects. First, he contended
that Personal Touch had based its unmet need calculations on 3-year-old data from fiscal
year 2015, rather than on updated data from fiscal year 2017 which had been made publicly
available on July 31, 2018, 10 days before Personal Touch filed its application. 3 In this
2
The record discloses that during the relevant time period, there were ten home
health care providers in Cabell County and eleven in Wayne County.
3
See text infra.
4
regard, Mr. Gibbs noted that the form used for applying for a CON specifies that “readily
available data” be used and argued that the updated data was readily available in time to
have been incorporated into the application. Second, Mr. Gibbs argued that Personal
Touch had applied the wrong methodology for determining unmet needs in Cabell and
Wayne County, in that it failed to apply the adjustment factor contained in section V(C)(4)
of the Standards. See supra note 1. Mr. Gibbs acknowledged that the methodology utilized
by Personal Touch comported with the Authority’s longstanding interpretation of the
Standards, specifically, that the adjustment factor came into play only in situations where
other agencies in a county had received CON approval within the past 12 months. 4 He
argued, however, that the Authority’s interpretation was wrong. In that regard, he testified
that before the Standards were adopted in their final form, HCCRA had developed a sample
application form that applied the adjustment factor in all cases, not just in the limited
4
Evidence submitted at the hearing demonstrated that CON approval had been
given in 2002 for provision of home health services where the unmet need in Wayne
County was 69 patients; again in 2002 where the unmet need in Wayne County was 75
patients; in 2003 where the unmet need in Jackson County was 127 patients, the unmet
need in Putnam County was 386 patients, and the unmet need in Lincoln County was 97
patients; again in 2003 where the unmet need in Boone County was 125 patients, the unmet
need in Cabell County was 5 patients, the unmet need in Lincoln County was 98 patients,
the unmet need in Logan County was 180 patients, and the unmet need in Wyoming County
was 212 patients; in 2004, where the unmet need in Berkeley County was 195 patients;
again in 2004, where the unmet need in Wyoming County was 76 patients; in 2008, where
the unmet need in Lincoln County was 30 patients, and the unmet need in Wayne County
was 19 patients; in 2015, where the unmet need in Berkeley County was 961 patients, the
unmet need in Hampshire County was 203 patients, the unmet need in Jefferson County
was 606 patients, the unmet need in Morgan County was 116 patients, and the unmet need
in Mineral County was 130 patients; in 2017, where the unmet need in Pleasants County
was 8 patients, and the unmet need in Tyler County was 6 patients.
5
situation set forth above. He further testified that in 1997, two CON applications that had
been decided by HCCRA 5 had specifically referred to, and applied, the 229 figure as a
threshold, not an adjustment, although he acknowledged that at least since 2002, the
Authority had consistently taken the opposite position. Mr. Gibbs further testified to the
fact that on January 11, 2010, another health care expert, Raymona Kinneberg, then-
advisor to the Authority’s Certificate of Need Director, wrote a letter in which she
expressed agreement with Mr. Gibbs’ opinion, stating that “no new agencies should be
approved in a county where the number of unserved patients was below the threshold set
in the standards, whether or not a new agency had been approved in the previous year.” 6
Mr. Gibbs also opined that what he deemed to be the Authority’s “mistake” ‒ failing to
recognize that the adjustment factor should be applied in all cases ‒ has been perpetuated
in large part by the Authority’s failure to “consider adjusting the threshold adjustment
factor at the time it updates the need calculations[,]” 7 in the 25 years which have elapsed
since the Standards were established. Finally, Mr. Gibbs noted that in 2007, in a CON
5
In re: Pro Careers, Inc., CON File No. 96-3/9-5726-Z (Mar. 17, 1997); In re:
Critical Care Nursing Agency, Inc., CON File No. 96-2/3-5790-Z/Z (Mar. 20, 1997).
6
Ms. Kinneberg, who later became president of United, now holds a contrary view.
See text infra.
7
It appears that Mr. Gibbs’ reference to updating “the needs calculations” was not
a reference to the structure of the methodology, which has never been updated, but to the
population data which is incorporated into the methodology. Although the record is not
entirely clear on this point, it appears that the methodology is updated every two years with
new data. An applicant works from the population data contained in the latest “Home
Health Care Methodology” that the Authority makes publicly available. See text infra.
6
appeal in the Circuit Court of Mason County, 8 the court had held that the Authority’s
interpretation of Section V(C) of the Standards “results in absurd and conflicting decisions”
in that it would be possible “to approve an application where the projection of unmet need
is between 1 and 228 available new patients and also deny one with the same projected
result.” 9 See text infra. Third, Mr. Gibbs testified that with the Amedysis petitioners and
others already providing home health services in Cabell and Wayne Counties, consumers
have adequate choice and no need for additional services. Therefore, in Mr. Gibbs’ view,
the status quo should be maintained.
On April 4, 2019, the Authority issued its Decision, approving Personal
Touch’s CON application, conditioned on Personal Touch’s submission of annual reports
for the first three years of operation showing “the actual utilization and revenue and
expenses compared to the projections presented[.] In this regard, the Authority specifically
concluded, in relevant part, that “[p]atients will continue to experience serious problems in
obtaining care of the type proposed in the absence of the proposed project,” that “[t]he
project is consistent with the State Health Plan,” and that “[t]he project will serve the
medically underserved population.” The Amedysis petitioners filed a timely Request for
8
Effective March 30, 2017, all appeals from a decision of the Office of Judges in a
case involving the grant or denial of a CON are filed in the Circuit Court of Kanawha
County. See id. § 16-2D-16(f).
9
Pleasant Valley Hosp., Inc. v. W. Va. Health Care Auth. and Family Home Health
Plus, Inc. dba Ohio Valley Home Health, Inc., No. 06-AA-20, at p. 8 (Mason Cnty. Cir.
Ct. Order dated Mar. 27, 2007).
7
Review by the Health Care Authority/Office of Judges, and on September 28, 2019,
following briefing and argument, the administrative law judge determined “that the
Authority did not err in approving the Personal Touch CON for home health services in
Cabell and Wayne Counties,” and affirmed the April 4, 2019, decision.
On October 23, 2019, the Amedysis petitioners filed an administrative appeal
in the Circuit Court of Kanawha County. By order entered on February 28, 2020, the court
affirmed the decision of the Office of Judges and specifically found that the “decision is
correct and . . . the Authority did not err in approving the Personal Touch CON for home
health services in Cabell and Wayne counties, West Virginia.” This appeal followed.
No. 20-0401
In the second case, the Preston Memorial petitioners contend that a CON
issued by the Authority to respondent was improper in that United failed to demonstrate
unmet need for additional home health services in Preston County.
United is a 292-bed acute care hospital located in Harrison County, West
Virginia. At the time of events relevant to this case, it was the only provider of inpatient
and outpatient acute care in Harrison County, and provided a range of inpatient and
outpatient acute care services in Doddridge County as well. Additionally, United provided
hospital and home health services in Harrison County and surrounding areas, and provided
home health care services in Barbour, Doddridge, Harrison, Lewis, Marion, Taylor, and
8
Upshur Counties. On July 17, 2017, United filed its application for a CON allowing it to
expand its existing home health care services into Preston County. According to the
calculations contained in the application filed by United, which followed the methodology
contained in Section V(C) of the Standards, the unmet need for home health care services
was 44 individuals in Preston County.
On July 18, 2017, the application was deemed complete, and on August 1,
2017, the Authority issued an Amended Notice of Review. Thereafter, the Preston
Memorial petitioners sought recognition as “affected persons” and asked for a hearing.
Once again, it is important to note that all 5 existing home health care providers in Preston
County, including the Preston Memorial petitioners, had been providing services in Preston
County for more than 12 months preceding the date of United’s application.
On December 7, 2017, a public hearing was held to determine whether the
application of United for a CON, which would allow it to expand its services into Preston
County, should be granted or denied by the Authority. United put on testimony and
evidence to support its contention that such expansion would be beneficial in a number of
respects. First, because many Preston County patients are released from WVU hospitals
with very complicated needs, home health services provided by United would provide
continuity of care, immediate access to medical records which, in turn, would allow for
better communication and coordination of services, and access to some of WVU hospitals’
medical experts, particularly in the Heart and Vascular Institute. Additionally, United
9
noted that it takes home health services patients who would not be accepted by other
providers, specifically, patients known to be noncompliant and “have a variety of issues
that can negatively affect your quality scores because they use the emergency room, they
get readmitted, they don’t follow their diabetic diet, they don’t take their medications.”
United also presented testimony and evidence to support its contention that
the proposed expansion of its home health services into Preston County was financially
feasible, in large part by “help[ing] us to reduce readmissions . . . that cost approximately
$2,600 per admission.” Finally, of specific relevance to this appeal, United offered
testimony and evidence to support its projection that in its first year of operation in Preston
County, it would provide services to 44 patients whose need was currently unmet, 10 as well
as to 56 patients shifted from other services already in operation in the county. Testimony
on this issue was given by Raymona Kinneberg, President of United, who supported its
contention that 44 unmet needs patients was sufficient to support its application for a CON,
and that the adjustment factor of 229 unmet needs patients, see text supra, came into play
only in situations where other agencies in a county had received CON approval within the
past 12 months. Ms. Kinneberg acknowledged having once expressed a different opinion
while she was serving as a consultant to the director of the State’s certificate of need
program, but testified that she had changed her view in consideration of two factors: first,
During the relevant time period, the state home health services utilization rate was
10
25/1,000 residents; based on its population, Preston County’s need was estimated to be
875, while its actual utilization was 832, leaving unmet need of 44. See text infra.
10
the long, consistent interpretation of the Standards by HCA; and second, the fact that
utilizing the 229 figure as a threshold, rather than an adjustment, would mean that based
on their respective populations, ten counties in West Virginia 11 would never have an unmet
need sufficient to support a CON for any home health services provider to operate therein.
In response to United’s evidentiary presentation, the Preston Memorial
petitioners put on their own evidence and testimony, including, in relevant part, the
testimony of Charles Gibbs. Mr. Gibbs made the same arguments as he made in the
Amedisys proceedings with respect to the issue of unmet need: specifically, he contended
that using the 229 figure as a threshold in all cases, rather than simply as an adjustment
where an existing provider had received a CON within the past 12 months, balances “the
need for enough providers . . . while recognizing the need to protect financial viability, the
operational viability, and the quality viability . . . [by regulating] the proliferation of home
health systems.” In Mr. Gibbs’ view, the position taken by United, and upheld by HCA,
that an unmet need of 44, or even 1, is sufficient to authorize a CON, is “unreasonable,
absurd and illogical.” Mr. Gibbs also testified that the United project was not financially
feasible, pointing out that United’s own projections showed a $103,915 loss in 2018, a
$96,860 loss in 2019, and a $88,639 loss in 2020, for a total loss of $289,414 over three
11
Calhoun, Doddridge, Gilmer, Pendleton, Pleasants, Pocahontas, Tucker, Tyler,
Webster, and Wirt.
11
years. 12 Finally, Mr. Gibbs noted that United had provided no letters of support for its
proposed expansion of home health services into Preston County.
On February 16, 2018, the Authority issued its Decision, approving United’s
CON application. In this regard, the Authority specifically concluded, in relevant part, that
“[p]atients will continue to experience serious problems in obtaining care of the type
proposed in the absence of the proposed project,” that “[t]he project is consistent with the
State Health Plan,” and that “[t]he project will serve the medically underserved
population.” The Amedisys petitioners filed a timely Request for Review by the Health
Care Authority/Office of Judges, and on June 27, 2018, following briefing and argument,
the administrative law judge determined “that the Authority did not err in approving the
Personal Touch CON for home health services in Preston County,” and affirmed the
February 16, 2018, decision.
On July 24, 2018, the Preston Memorial petitioners filed an administrative
appeal in the Circuit Court of Kanawha County. By order entered on May 20, 2020, the
12
United’s evidence on this point was that expansion of its home health care services
program into Preston County was economically feasible. In this regard, United’s Chief
Financial Officer testified that United had based its financial projections “on how its home
health agency actually operates ‒ as a single unit and not as distinct counties.” Based on
the totality of the evidence, the Authority concluded that “[United] has the resources to
cover any losses initially created by expanding its home health services to Preston County.
The Authority finds that [United] has adequately addressed the Standards as they pertain
to the financial feasibility of this project and this project is financially feasible.”
12
court affirmed the decision of the Office of Judges and specifically found that the decisions
of the Authority and the Office of Judges awarding a CON to United “were supported by
substantial evidence on the whole record; were rendered in accordance with law; were not
arbitrary or capricious; and did not constitute an abuse of discretion or clearly unwarranted
exercise of discretion.” This appeal followed.
II. Standard of Review
At the initial review level, West Virginia Code § 16-2D-16 provides, in
relevant part, that an appeal is processed by the Office of Judges “in accordance with the
provisions governing the judicial review of contested administrative cases in article five,
chapter twenty-nine-a of this code.” The specific standard of review both for the Office of
Judges and, on appeal therefrom, the circuit court, is set forth in West Virginia Code §
29A-5-4(g) (2016):
‘“‘Upon judicial review of a contested case under the
West Virginia Administrative Procedure Act, Chapter 29A,
Article 5, Section 4(g), the circuit court may affirm the order
or decision of the agency or remand the case for further
proceedings. The circuit court shall reverse, vacate or modify
the order or decision of the agency if the substantial rights of
the petitioner or petitioners have been prejudiced because the
administrative findings, inferences, conclusions, decisions or
order are: ‘(1) In violation of constitutional or statutory
provisions; or (2) In excess of the statutory authority or
jurisdiction of the agency; or (3) Made upon unlawful
procedures; or (4) Affected by other error of law, or (5) Clearly
wrong in view of the reliable, probative and substantial
evidence on the whole record; or (6) Arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion.’ Syllabus point 2, Shepherdstown
Volunteer Fire Department v. West Virginia Human Rights
13
Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).”
Syllabus, Berlow v. West Virginia Board of Medicine, 193
W.Va. 666, 458 S.E.2d 469 (1995).’ Syl. Pt. 1, Modi v. West
Virginia Bd. of Medicine, 195 W.Va. 230, 465 S.E.2d 230(1995).
Syl. Pt. 1, W. Va. Med. Imaging & Radiation Therapy Tech. Bd. of Exam’rs v. Harrison,
227 W. Va. 438, 711 S.E.2d 260 (2011).
Of specific relevance to the instant case, where the petitioners are challenging
the legitimacy of HCA’s interpretation of its own CON Standards, we have held that
“‘[j]udicial review of an agency’s legislative rule and
the construction of a statute that it administers involves two
separate but interrelated questions, only the second of which
furnishes an occasion for deference. In deciding whether an
administrative agency’s position should be sustained, a
reviewing court applies the standards set out by the United
States Supreme Court in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct.
2778, 81 L. Ed.2d 694 (1984). The court first must ask whether
the Legislature has directly spoken to the precise question at
issue. If the intention of the Legislature is clear, that is the end
of the matter, and the agency’s position only can be upheld if
it conforms to the Legislature’s intent. No deference is due the
agency’s interpretation at this stage.’ Syl. Pt. 3, Appalachian
Power Co. v. State Tax Dep’t of W. Virginia, 195 W. Va. 573,
466 S.E.2d 424 (1995).”
Syl. Pt. 5, Murray Energy Corp. v. Steager, 241 W. Va. 629, 827 S.E.2d 417 (2019). If the
intention of the Legislature is not clear, or if the Legislature has not spoken to the specific
issue, this Court will then turn to the second of the two interrelated Chevron questions.
‘If legislative intent is not clear, a reviewing court may not
simply impose its own construction of the statute in reviewing
a legislative rule. Rather, if the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
14
whether the agency’s answer is based on a permissible
construction of the statute. A valid legislative rule is entitled
to substantial deference by the reviewing court. As a properly
promulgated legislative rule, the rule can be ignored only if the
agency has exceeded its constitutional or statutory authority or
is arbitrary or capricious. W. Va. Code, 29A–4–2 (1982).’ Syl.
Pt. 4, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195
W. Va. 573, 466 S.E.2d 424 (1995).
Syl. Pt. 6, Murray Energy Corp. v. Steager, 241 W. Va. 629, 827 S.E.2d 417 (2019).
III. Discussion
In West Virginia Code §§ 16-2D-1 to -20 (2016 & Supp. 2020), the West
Virginia Legislature created the CON program, declaring it to be the State’s public policy
“[t]hat the offering or development of all health services shall be accomplished in a manner
which is orderly, economical and consistent with the effective development of necessary
and adequate means of providing for the health services of the people of this state[,]” and
further to “avoid unnecessary duplication of health services, and to contain or reduce
increases in the cost of delivering health services.” See id. § 16-2D-1(1). Jurisdiction to
administer the CON program was vested in the Authority, see id. § 16-2D-3(a)(1), which
was tasked, inter alia, with “[r]eview[ing] the state health plan, the certificate of need
standards, and the cost effectiveness of the certificate of need program and make any
amendments and modifications to each that it may deem necessary[.]” See id. § 16-2D-
3(a)(2).
15
Pursuant to the statutory framework, certain health services, including home
health services, must be reviewed and approved by the Authority before they may be
offered to the public in the first instance or expanded into a new area or areas. A certificate
of need may only be issued where the offering or expansion of services is “[f]ound to be
needed; and . . . [c]onsistent with the state health plan, unless there are emergency
circumstances that pose a threat to public health.” See id. §§ 16-2D-12(a)(1), (2). In
making the determination of whether a CON may be issued, the Authority utilizes
Standards which were approved by the Governor and were thereafter in full force and effect
from the date of the Governor’s approval. See id. § 16-2D-6(g). Of note, the Legislature
has formally adopted the Standards and given them “full force and effect.” See id. § 16-
2D-6(g).
In these consolidated cases, all parties agree that the respondents’ applications
for CONs allowing them to expand their existing home health care services into Cabell,
Wayne, and/or Preston County, were required to be evaluated by the Authority under the
existing Standards. 13 As part of the overall evaluations, the Agency reviewed whether the
respondents had successfully demonstrated the existence of the respective counties’
13
Petitioners are highly critical of the fact that the Authority has made no changes
to the Standards, and particularly Section V(C) thereof, since November 13, 1996, the date
on which the Standards were approved by the Governor. However, although there is no
question that the Authority has statutory authority to revise and upgrade the Standards, W.
Va. Code § 16-2D-6, petitioners do not contend that it has a statutory mandate to do so, or
that this Court either could or should force the Authority to act.
16
“unmet need” for services, which was calculated in the first instance, and then on review,
by utilizing the methodology set forth in Section V(C) of the Standards. In this regard, the
“unmet need” that the respondents calculated in Cabell, Wayne, and Preston County, 29,
55, and 44 individuals, respectively, was deemed by the Authority to be sufficient.
Petitioners contended at all stages of the proceedings below, and contend on appeal in their
core assignment of error, 14 that in order to establish “unmet need” a provider must establish
the existence of no fewer than 229 individuals needing services. In this regard, the
petitioners argue that the Authority’s interpretation of the Standards, and particularly
section V(C)(4) thereof, “Calculation of the Threshold (Adjustment Factor),” is “[c]learly
wrong in view of the reliable, probative and substantial evidence on the whole record; or .
. . [a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.” W. Va. Med. Imaging, 227 W. Va. at 440, 711 S.E.2d at 262, Syl.
Pt. 1, in part. As set forth above, the Authority’s consistent and longstanding interpretation
of the procedures set forth in Section V(C), is that the figure of 229 individuals in need of
home health care is an adjustment factor that comes into play only where an applicant seeks
a CON in a county or counties where another provider received a CON within the preceding
12 months. The adjustment, says the Authority, is intended to give relatively new providers
an opportunity to develop a client base before facing competition from brand new
providers. In contrast, petitioners claim that the figure is a threshold factor, specifically:
14
Although the petitioners break the issue down into multiple parts, which this Court
will address in turn, there is really only one issue: whether the Authority’s interpretation
of Section V(C) of the Standards is entitled to deference. See text infra.
17
that whether or not another provider or providers received a CON within the preceding 12
months, no CON can be granted unless the unmet need in a county or counties equals or
exceeds 229 individuals.
In order to address this issue, we first look at section V(C), “Determining
Unmet Need for Home Health Services,” as a whole. This determination, which is made
for any county in which a home health care provider seeks a CON, requires an applicant to
make three or four separate calculations which are set forth in four discrete subsections.
Of note, however, the following language is contained in the general overview which
precedes those subsections:
Calculation 1 compares the county and state home health
utilization rates.
Calculation 2 determines the extent of potential home health
recipients in the county to reach the state utilization level.
Calculation 3 determines the extent of potential home health
recipients in the county to reach the state utilization level.
Calculation 4 involves an adjustment factor for the agencies
receiving Certificate of Need approval in the previous 12
months to allow for their initiation and development of home
health services. Each agency is allowed a 229-home health
recipient adjustment factor for each county in the approved
service area. An unmet need or threshold of at least 229
projected home health recipients must occur in the county
before consideration will be given to issuing another
Certificate of Need for the County.
(Emphasis added). With this overview in mind, we turn to the subsections describing the
particular calculations to be made.
18
First, subsection (1), “Calculation of the Actual Total County Home Health
Utilization Rate,” sets forth the methodology for calculating a county’s home health care
utilization rate, which is expressed as a fraction: the number of persons needing home
health care services per 1,000 citizens in the county. To find this rate, the number of home
health care recipients in a county is divided by the county’s population for the same year,
then multiplied by 1,000 in order to arrive at the county’s home health care utilization rate.
It is undisputed that based on fiscal year 2015 population data, which was contained in the
methodology utilized in the Personal Touch application, the utilization rate in Cabell
County was 27.5/1000 and the utilization rate in Wayne County was 26.5/1000, while the
state utilization rate was 27.8/1000. 15 It is further undisputed that based on fiscal year 2017
population data, which was contained in the methodology utilized in the United
application, the utilization rate in Preston County was 23.7/1000, while the state utilization
rate was 25/1000. Pursuant to substandard V(C)(1), if a county’s utilization rate is above
the state rate, then that is the end of the inquiry; an unmet need does not exist. If the
county’s utilization rate is below the state rate, then the CON applicant goes on to
subsection (2). In these consolidated cases, all of the counties’ utilization rates were below
the state rates for the years in question.
15
While the Amedisys petitioners do not contest any of the V(C)(1) – (3)
calculations in terms of the mathematics, they do contest the legitimacy of utilizing fiscal
year 2015 data when, according to their expert witness, fiscal year 2017 data was available
at the time Personal Touch filed its application for a CON. See text infra.
19
Subsection (2), “Calculation of the Actual Number of Home Health
Recipients Needed to Obtain the State Utilization Rate,” sets forth the methodology for
calculating the actual number of home health recipients needed to bring a county’s
utilization rate in line with the state’s rate. To make the calculation: the number of home
health care recipients in a county in a particular year is multiplied by the state utilization
rate for that year, after which the resulting number is then divided by the county utilization
rate for the year. It is undisputed that based on data from fiscal year 2015, the number of
recipients needed to bring Cabell County’s utilization rate into line was 2,687 and the
number needed to bring Wayne County’s utilization rate into line was 1,139. It is further
undisputed that based on data from fiscal year 2017, the number of home health recipients
needed to bring Preston County’s utilization rate into line was 875.
Subsection (3), Calculation of the Actual Number of Home Health Recipients
Below the State Rate,” sets forth the methodology for calculating the actual number of
home health recipients below the state utilization rate. To make the calculation: the number
of home health care recipients in a county, set forth in subsection (1), is subtracted from
the number of home health care recipients needed to bring the county’s utilization rate in
line with the state’s rate, set forth in subsection (2). It is undisputed that in 2017, the
number of recipients below the state utilization rate in Cabell County was 29 and the
number below the state rate in Wayne County was 55. It is further undisputed that in 2018,
the actual number of home health care recipients below the state utilization rate in Preston
County was 44.
20
It is at this point in the calculation that the parties’ unanimity breaks down.
In order to understand their respective arguments, we will set forth subsection (4) verbatim.
CALCULATION OF THE THRESHOLD (ADJUSTMENT
FACTOR)
(This calculation is done only if there are agencies in the proposed
county which received CON approval in the previous 12 months.)
Formula a – b = c
a. List the current county home health recipients below state
b. Subtract adjustment factor for agencies receiving CON
approval in previous 12 months.
c. Number above threshold adjustment
Conclusion:
If the threshold is at least 229 projected home health recipients, an
unmet need exists.
Petitioners contend that the key here is in both the placement and the language
of the Conclusion. First, they argue that its un-indented position on the page sets it apart
from the subsection (4) formula, and thus it is logically a conclusion to Section V(C) of the
Standards, “Determining Unmet Need for Home Health Services,” in its entirety, not just
to subsection V(C)(4), “Calculation of the Threshold (Adjustment Factor).” Second, they
argue that the preceding argument is buttressed by the use of the word “threshold” and the
correlative omission of the word “adjustment” in the Conclusion. Therefore, petitioners
sum up, regardless of the existence of non-existence of any other providers, and regardless
of how long any such providers have been in business, an applicant for a CON must
demonstrate that there are at least 229 individuals in the county in need of home health care
services. Respondents Personal Touch, United, and the Authority counter that in the
21
overview language of Section V(C), it is specifically stated that the 229 figure is “an
adjustment factor for the agencies receiving [CON] approval in the previous 12 months to
allow for their initiation and development of home health services.” (Emphasis added).
Further, respondents cite the language of subsection V(C)(4), specifically, that “[t]his
calculation is done only if there are agencies in the proposed county which received CON
approval in the previous 12 months.” (Emphasis added). Additionally, respondents note
the unchallenged testimony of Raymona Kinneberg that if the 229 figure were interpreted
to be a threshold, rather than an adjustment, 10 counties in West Virginia are so sparsely
populated that a CON could never be approved for the provision of home health care
services for their residents. See supra note 11.
Having addressed the parties’ respective factual contentions in broad terms,
we now turn to the petitioner’s overarching, interrelated legal arguments: that the
Authority’s interpretation of the Standards, specifically, that the 229 figure is an adjustment
factor rather than a threshold factor, is arbitrary, capricious, and clearly erroneous, and
therefore not entitled to deference by this Court; and that on de novo review, this Court
should find the 229 figure to be a threshold factor. In this regard, this Court has adopted
the two-part test of Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984),
which “first ask[s] whether the Legislature has ‘directly spoken to the precise [legal]
question at issue.’” Appalachian Power, 195 W. Va. at 582, 466 S.E.2d at 433. Here,
petitioners concede that because the Standards were drafted by the Authority’s predecessor,
22
HCCRA, not by the Legislature, the first prong of the Chevron analysis is not applicable.
We therefore turn to the second prong of Chevron, which asks “whether the agency’s
answer is based on a permissible construction of the [Standards].” Id. In determining that
issue, we have held that “[a] valid legislative rule is entitled to substantial deference by the
reviewing court. As a properly promulgated legislative rule, the rule can be ignored only
if the agency has exceeded its constitutional or statutory authority or is arbitrary or
capricious.” Murray Energy Corp. v. Steager, 241 W. Va. at 632, 827 S.E.2d at 419, Syl.
Pt. 6, in part. However, if it is determined that an agency’s interpretation of its regulations
is not entitled to Chevron deference, then we may interpret the regulations pursuant to our
well-established rule that “‘[i]nterpreting a statute or an administrative rule or regulation
presents a purely legal question subject to de novo review.’ Syl. Pt. 1, Appalachian Power
Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995).” Syl. Pt. 2,
Steager v. Consol Energy, Inc., 242 W. Va. 209, 832 S.E.2d 135 (2019).
23
In support of both their deference and de novo review arguments, 16 petitioners
contend that common sense, “whole-text analysis,” 17 the Merriam-Webster Dictionary, 18
and a grammatical analysis made by the late United States Supreme Court Justice Antonin
Scalia, 19 all mandate a finding that the word “Conclusion” at the end of Section subsection
V(C)(4) of the Standards, “[i]f the threshold is at least 229 projected home health
16
This Court has long recognized the deference/de novo dichotomy which is present
in all of the cases where the issue is an agency’s interpretation of a statute it is required by
law to enforce and/or a regulation it has promulgated as part of that process. See, e.g., W.
Va. Consol. Pub. Ret. Bd. v. Wood, 233 W. Va. 222, 228, 757 S.E.2d 752, 758 (2014)
(“While this Court agrees with the proposition that the [agency’s] interpretation is entitled
to deference, it is imperative that a reviewing court also consider the possibility . . . that
the [agency’s] interpretation is erroneous.”).
17
See Weirton Med. Ctr., Inc. v. W. Va. Bd. of Med., 192 W. Va. 72, 75, 450 S.E.2d
661, 664 (1994) (“It is a cardinal rule of statutory construction that a statute should be
construed as a whole, so as to give effect, if possible, to every word, phrase, paragraph and
provision thereof, but such rule of construction should not be invoked so as to contravene
the true legislative intention.’”) (citation omitted).
18
Petitioners note that there are three references in the Standards to a
“threshold/adjustment” factor, and that the forward slash, or virgule, between the two
words is significant because the word virgule is defined in the online version of the
Merriam-Webster Dictionary as “a short oblique stroke between two words indicating
whichever is appropriate may be chosen to complete the sense of the text in which they
occur.” Thus, according to petitioners, when the word “adjustment” is used in V(C) and
V(C)(4), the word should be interpreted to mean “threshold” since that would be
“appropriate . . . to complete the sense of the text[.]” Inasmuch as there is no virgule in
any of the relevant provisions of V(C), we decline to follow petitioners down this linguistic
rabbit hole.
19
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 156 (2012) (“Material within an indented subpart relates only to that subpart;
material contained in un-indented text relates to all the following or preceding indented
subparts.”).
24
recipients, an unmet need exists[,]” applies to the entirety of the four-step process for
determining unmet need, not just to the fourth step. This result obtains, say petitioners,
because (a) none of the other subsections are followed by a “Conclusion,” suggesting that
the one and only “Conclusion” in Section V(C) must apply to the entire calculation; (b) the
“Conclusion” is not marginally aligned with the text of subsection V(C)(4), and thus cannot
be deemed to be a part of that text; and (c) the overview language of Section V(C) includes
the statement that “[t]he four calculations must be completed for each county to be served,”
suggesting that the fourth calculation applies in every CON cases, not just in those where
a CON has been issued to another provider within the past 12 months. Additionally,
petitioners claim, albeit in an oblique fashion, that absent a threshold of 229 individuals to
establish unmet need, the Standards would not meet the objectives set forth in West
Virginia Code § 16-2D-1, particularly the “avoid[ance of] unnecessary duplication of
health services.”
We are unpersuaded that these scattershot arguments are sufficient to
overcome the specific directive in the overview language of Section V(C) that
“[c]alculation 4 involves an adjustment factor for the agencies receiving Certificate of
Need approval in the previous 12 months to allow for their initiation and development of
home health services[,]” and the specific directive in subsection V(C)(4) that “[t]his
calculation is done only if there are agencies in the proposed county which received CON
25
approval in the previous 12 months.” (Emphasis added). 20 We are further unpersuaded
that the placement of the “Conclusion” in subsection (C)(4) in un-indented text, see supra
note 19, has any significance. In this regard, we note that the “Calculation of the Actual
Total County Home Health Utilization Rate,” set forth in subsection V(C)(1) of the
Standards, is set up in a manner identical to V(C)(4): following an indented six-step
analysis whose purpose is to determine whether a county’s home health utilization rate is
below the state rate, we find the following, un-indented, line: “If yes, continue with the
following. If no, an unmet need does not exist.” Likewise, we are unpersuaded that
petitioners’ argument is supported by common sense, in light of the undisputed testimony
that if an unmet need of 229 individuals were needed to support the issuance of a CON, ten
counties in West Virginia would never be able to meet the 229 threshold.
In addition, the petitioners give no weight at all to the undisputed fact that for
at least 20 years, the Authority has consistently interpreted the 229 figure as an adjustment
factor, not a threshold factor, and accordingly has consistently interpreted subsection
V(C)(4) of the Standards to apply only in cases where another provider has received a CON
within the 12 months preceding a new application. 21 In this regard, we have held that
20
As previously noted, because no virgule appears in these directives, we will not
linger over petitioners’ complex linguistic argument that its appearance elsewhere in the
Standards somehow transforms the word “adjustment” into “threshold.”
21
Petitioners put on evidence to show that the Authority’s predecessor, HCCRA,
seemed to embrace petitioners’ view while the Standards were being developed, by affixing
26
[i]nconsistency is only one of many circumstances that
this Court should consider in determining deference. The
factors most often recognized by courts as to whether to defer
to administrative interpretations were set out by Colin S. Diver
in Statutory Interpretation in the Administrative State, 133 U.
Pa. L. Rev. 549, 562 n. 95 (1985). He lists them as
“(1) whether the agency construction was
rendered contemporaneously with the statute's
passage, ... (2) whether the agency’s construction
is of longstanding application, ... (3) whether the
agency has maintained its position consistently
(even if infrequently), ... (4) whether the public
has relied on the agency’s interpretation, ... (5)
whether the interpretation involves a matter of
‘public controversy,’ ... (6) whether the
interpretation is based on ‘expertise’ or involves
a ‘technical and complex’ subject, ... (7) whether
the agency has rulemaking authority, ... (8)
whether agency action is necessary to set the
statute in motion, ... (9) whether ... [the
Legislature] was aware of the agency[‘s]
interpretation and failed to repudiate it, ... and
(10) whether the agency has expressly addressed
the application of the statute to its proposed
action[.]” (Citations omitted).
Appalachian Power, 195 W. Va. at 591 n.24, 466 S.E.2d at 442 n.24.
Finally, with respect to petitioners’ intimation that the Authority’s
interpretation of the Standards allows for the unnecessary duplication of home health
services in counties such as Cabell, Wayne, and Preston, we note that there is no empirical
evidence in the appendix record to support such a claim. Additionally, although the Preston
to the draft Standards a sample calculation that treated 229 as a threshold figure. However,
HCCRA somehow “omitted” ‒ whether intentionally or inadvertently ‒ putting that sample
calculation into the final version of the Standards that was signed by the Governor.
27
Memorial petitioners attempted to show at the hearing before the Authority that the
existence of a new home health provider in Preston County would result in some
“poaching” of the Preston Memorial petitioners’ existing patients, and that United’s plan
for providing services in Preston County was not cost-effective, the petitioners did not list
these alleged errors, directly or indirectly, in an assignment of error. Therefore this Court
will disregard them on appeal. See Rule 10(c)(3) of the West Virginia Rules of Appellate
Procedure. 22
Building on the preceding arguments, all of which analyze the language,
placement, and punctuation of Section V(C) of the Standards through the lens of an English
academician, petitioners next contend that in 2007, the Circuit Court of Mason County
found, on facts materially similar to those in the instant consolidated cases, that the 229
22
This Court recently discussed the importance of assignments of error, cautioning
that
a petitioner’s presentation of an assignment of error allows a
respondent to address the focused issue, confident that he did
not fail to discern a determinative argument buried in
petitioner’s prose. This courtesy is imperative to equitable
function, averting the danger that the Court and respondent
may discern different issues from a petitioner's lengthy, free-
flowing argument. This benefit, in turn, inures to the petitioner,
ensuring that a responsive pleading does not throw the appeal
into an unexpected rabbit hole.
Wilson v. Kerr, No. 19-0933, 2020 WL 7391150, at *3 (W. Va. Dec. 16, 2020)
(memorandum decision).
28
figure for unmet need was a threshold that all CON applicants must meet, not just an
adjustment factor to be applied where another provider had received a CON in the
particular county within the past 12 months. Pleasant Valley Hosp., Inc. v. Fam. Home
Health Plus, Inc., d/b/a Ohio Valley Home Health, Inc., No. 06-AA-20 (Cir. Ct. of Mason
Cnty., Mar. 27, 2007), appeals denied, Nos. 073947 and 073948 (W. Va. Sup. Ct. Apr. 3,
2008). We may dispose of this argument without extended discussion. First, to the extent
petitioners are trying to claim that the Mason County case has precedential value because
of this Court’s denial of the appeals therefrom, we have clearly held to the contrary: “This
Court’s rejection of a petition for appeal is not a decision on the merits precluding all future
consideration of the issues raised therein[.]” Syllabus, in part, Smith v. Hedrick, 181 W.
Va. 394, 382 S.E.2d 588 (1989). Second, petitioners have given this Court no principled
basis on which to conclude that the analysis of the court in Pleasant Valley Hospital was
any more cogent, insightful, or scholarly than the contrary analysis of the two courts in the
cases below. Third, as is clear from the analysis herein, we disagree with the conclusion
reached by the court in the Pleasant Valley Hospital case and disagree with petitioners’
sweeping assertion that “the [court’s] interpretation of the Home Health Standards is the
only correct interpretation.”
The petitioners’ next argument is ostensibly about health planning and public
policy considerations, but in reality is merely a compilation of online information which
purports to demonstrate that there exists (a) a “precipitous expansion of services by new
providers in twenty-five counties” in West Virginia, and (b) a disconnect between the
29
Authority’s standard for unmet need in home health services and its standard for unmet
need in other areas of health care. 23 Our examination of the voluminous appendix record
submitted by the parties demonstrates that no empirical data to support these contentions
was submitted to the Authority at either the Amedisys petitioners’ public hearing or the
Preston Memorial petitioners’ public hearing, and therefore none of it was considered by
either the Office of Judges or the circuit courts. Further, at oral argument respondents’
counsel stated categorically that the number of home health care service providers is far
fewer than existed at the time the Standards were established in 1995, in large part because
of the consolidation of smaller providers into large nationwide providers such as Amedisys.
We need not resolve these factual disputes because it is a bedrock principle
of appellate jurisprudence that “representations in an appellate brief do not constitute a part
of the record on appeal.” Pearson v. Pearson, 200 W. Va. 139, 152, 488 S.E.2d 414, 427
(1997) (Workman, J., dissenting) (citing Wilkinson v. Bowser, 199 W.Va. 92, 483 S.E.2d
92 (1996)). And in any event, the Legislature has delegated matters involving public health
to the Authority, see id. § 16-2D-1 to -20, which has the institutional expertise needed to
resolve difficult issues of public health and citizens’ access to public health services. In
this regard, we have held that this Court’s review of an agency determination
23
Petitioners cite to internet sources for information on the Authority’s standards
governing unmet need for computed tomography; cardiac surgery; hospice services;
megavoltage radiation therapy; positron emission tomography; fixed magnetic resonance
imaging; in-home personal care; intermediate care facilities for individuals with
intellectual disabilities; and end stage renal disease.
30
must be performed with conscientious awareness of its limited
nature. The enforced education into the intricacies of the
problem before the agency is not designed to enable the court
to become a superagency that can supplant the agency’s expert
decision-maker. To the contrary, the court must give due
deference to the agency’s ability to rely on its own developed
expertise. The immersion in the evidence is designed solely to
enable the court to determine whether the agency decision was
rational and based on consideration of the relevant factors.
Princeton Cmty. Hosp. v. State Health Plan., 174 W. Va. 558, 564, 328 S.E.2d 164, 171
(1985) (citation omitted); cf. Appalachian Power, 195 W. Va. at 582, 466 S.E.2d at 433(“An inquiring court ‒ even a court empowered to conduct de novo review ‒ must examine
a regulatory interpretation of a statute by standards that include appropriate deference to
agency expertise and discretion.”). Given the Authority’s longstanding interpretation of
the particular Standard at issue, Section V(C) and more specifically subsection V(C)(4),
this Court will not presume to second-guess a policy which has only been challenged three
times in 25 years – with only one “win” for the position espoused by the petitioners, a
decision that has no precedential value since this Court denied the appeal therefrom
pursuant to our prior practice. 24
In consideration of the foregoing, we hold that where the State Health Plan
Home Health Services Standards were promulgated by the West Virginia Health Care
24
The current Rules of Appellate Procedure were promulgated and adopted by this
Court on October 19, 2010, and were effective December 1, 2010. The Clerk’s comments
to Rule 21, Memorandum decisions, note that “[t]he ability to enter memorandum
decisions ‒ rather than refusal orders under prior practice ‒ is at the core of the revised
process: every appeal, unless dismissed, will result in a decision on the merits.”
31
Authority (formerly the West Virginia Health Care Cost Review Authority) pursuant to a
legislative grant of authority, West Virginia Code §§ 16-2D-1 to -20 (2016 & Supp. 2020),
authorized by the Governor, and formally adopted and given full force and effect by the
Legislature, see id. § 16-2D-6(g), the longstanding, consistent interpretation of those
Standards by the West Virginia Health Care Authority, being neither arbitrary nor
capricious, is entitled to judicial deference pursuant to Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
Finally, the Amedisys petitioners contend that the Authority erred in granting
a CON to Personal Touch because the data upon which the Section V(C) calculations were
based was not “the most recent home health survey data” available. In this regard, Personal
Touch utilized a methodology containing 2015 data, rather than utilizing 2017 data which
had been collected and aggregated by the Authority from a 2018 survey and made public
in or about June, 2018, prior to the date of Personal Touch’s application. Petitioners’ expert
witness, Mr. Gibbs, testified that if the 2017 data had been utilized, the V(C) calculations
would have demonstrated that the unmet need in Cabell County had actually declined to -
195. In response, the respondents point out that it is the Authority, not the applicant, which
performs the unmet need calculations, and that at the time the Personal Touch application
was prepared and filed, the “2015 Home Health Care Methodology” was the most current
methodology available. In that regard, the Authority states in its brief that even if the raw
2017 data from the 2018 survey results was available in June, 2018, the “2017 Home Health
32
Need Methodology” was not available for use until December 8, 2018 ‒ months after the
Personal Touch application had been submitted.
Petitioners point to no statute, regulation, or case from this Court requiring an
applicant to use available raw data rather than the data contained in the Authority’s most
current “Hone Health Need Methodology.” Therefore, in accepting the calculations
contained in the Personal Touch application, the agency cannot be said to “ha[ve] exceeded
its constitutional or statutory authority or [to be] arbitrary or capricious[,]” Murray Energy,
241 W. Va. at 631, 827 S.E.2d at 419, Syl. Pt. 6, in part.
IV. Conclusion
For the foregoing reasons, the decisions of the circuit court in No. 20-0308 and No.
20-0401, consolidated for purposes of this appeal, are affirmed.
Affirmed.
33