Domestic Violence Survivors' Support Group, Inc. v. West Virginia Department of Health & Human Resources

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2017 Term
FILED
March 1, 2017
No. 16-0146 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

DOMESTIC VIOLENCE SURVIVORS’

SUPPORT GROUP, INC., doing business as

DOMESTIC VIOLENCE COUNSELING CENTER,

Petitioner

v.

WEST VIRGINIA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES, OFFICE OF HEALTH

FACILITY LICENSURE AND CERTIFICATION,

Respondent

Appeal from the Circuit Court of Kanawha County

The Honorable Jennifer F. Bailey, Judge

Civil Action No. 14-AA-40

REVERSED AND REMANDED

Submitted: January 17, 2017
Filed: March 1, 2017

Joseph M. Ward, Esq. Patrick Morrisey, Esq.
Frost Brown Todd, LLC Attorney General
Elise N. McQuain, Esq. Thomas M. Johnson, Jr., Esq.
Goodwin & Goodwin, LLP Deputy Solicitor General
Charleston, West Virginia Steven R. Compton, Esq.
Counsel for Petitioner Senior Assistant Attorney General
 James W. Wegman, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent

JUSTICE WORKMAN delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “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).

2. “The judiciary is the final authority on issues of statutory

construction, and we are obliged to reject administrative constructions that are contrary to

the clear language of a statute.” Syl. Pt. 5, CNG Transmission Corp. v. Craig, 211 W.Va.

170, 564 S.E.2d 167 (2002).

3. “‘Where the language of a statute is clear and without ambiguity the

plain meaning is to be accepted without resorting to the rules of interpretation.’ Syllabus

Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).” Syl. Pt. 3, Tribeca

Lending Corp. v. McCormick, 231 W.Va. 455, 745 S.E.2d 493 (2013).

4. “‘A statute, or an administrative rule, may not, under the guise of

“interpretation,” be modified, revised, amended or rewritten.’ Syllabus Point 1,

Consumer Advocate Div’n v. Public Service Comm’n, 182 W.Va. 152, 386 S.E.2d 650

(1989).” Syl. Pt. 4, CNG Transmission Corp. v. Craig, 211 W.Va. 170, 564 S.E.2d 167

(2002).

i
WORKMAN, Justice:

This action is before the Court upon the appeal of Petitioner Domestic

Violence Survivors’ Support Group, Inc., d/b/a Domestic Violence Counseling Center

(“DVCC”), a non-profit corporation that provides counseling services to victims of

domestic violence. DVCC appeals the order of the Circuit Court of Kanawha County,

West Virginia, which affirmed an administrative decision denying its application for a

behavioral health center license.1 Respondent West Virginia Department of Health and

Human Resources (“DHHR”), Office of Health Facility Licensure and Certification

(“OHFLAC”) denied DVCC’s application for licensure on the sole ground that DVCC

does not employ a licensed counselor. DVCC claims that OHFLAC arbitrarily interpreted

its administrative rule in a manner contrary to statute to arrive at its decision. We agree

and reverse the order of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

As a prerequisite to becoming a licensed behavioral health center, DVCC

applied for a Certificate of Need (“CON”) from the West Virginia Health Care Authority

(“WVHCA”). See W.Va. Code §§ 16-2D-1 to -20 (2016) (establishing criteria for CON

and providing procedures for approval). In February of 2012, the WVHCA issued a CON

to DVCC and it has been renewed multiple times during this litigation. DVCC submitted

1
A behavioral health center is a licensed entity that provides behavioral health
services as defined by West Virginia Code of State Rules § 64-11-3 (2000).

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its application for a behavioral health center license to OHFLAC in September of 2012.2

As part of the application process, OHFLAC conducted an onsite survey of DVCC.

OHFLAC issued a statement of deficiencies and DVCC responded by submitting plans of

correction. The parties worked together to resolve many of those issues; the only dispute

that remains unresolved is OHFLAC’s insistence that West Virginia Code of State Rules

§ 64-11-5.5g (2000), requires all counselors at behavioral health centers to be

professionally licensed. That rule provides: “All professional staff and consultants of the

Center shall be in compliance with applicable State professional licensure requirements.”

Id. OHFLAC interprets this rule as requiring counselors employed at behavioral health

centers be licensed by the Board of Examiners in Counseling pursuant to West Virginia

Code § 30-31-1 (2015).

Elizabeth Crawford, DVCC’s Executive Director, is the only individual

currently providing counseling services at DVCC. Ms. Crawford holds a Master of

Science degree in Community Health Promotion from West Virginia University’s School

2
Licensure from OHFLAC is mandated by West Virginia Code § 27-9-1 (2013),
which provides, in part:

No hospital, center or institution, or part of any
hospital, center or institution, to provide inpatient, outpatient
or other service designed to contribute to the care and
treatment of the mentally ill or intellectually disabled, or
prevention of such disorders, may be established, maintained
or operated by any political subdivision or by any person,
persons, association or corporation unless a license therefor is
first obtained from the Secretary of the Department of Health
and Human Resources.

2

of Medicine and over the years has completed numerous continuing education courses

related to domestic violence and counseling. However, Ms. Crawford does not hold a

license as a professional counselor pursuant to West Virginia Code § 30-31-1.

DVCC challenged OHFLAC’s decision to deny its licensure request and

the matter went to administrative hearing on August 28, 2013. DVCC argued that, as a

nonprofit corporation, its counselors are exempt from the licensure requirement by West

Virginia Code § 30-31-11(a)(4) (2015), which provides that “professional counselors . . .

in any public or private nonprofit corporations” are exempt from the requirements of

West Virginia Code § 30-31-1. DVCC presented testimony from Ms. Crawford;

OHFLAC submitted testimony from Dr. Rose Lowther-Berman, Program Manager for

the Behavioral Health Program at OHFLAC. Following the hearing, the hearing examiner

issued a recommended decision to the DHHR’s Secretary in which he found that West

Virginia Code of State Rules § 64-11-5.5g requires all professional personnel at

behavioral health centers to be licensed. On April 3, 2014, the DHHR’s Secretary issued

a Final Administrative Order wherein she adopted the hearing examiner’s decision.3

3
West Virginia Code of State Rules § 64-1-12 requires that a hearing examiner
issue a final order “within forty-five (45) days following the submission of all documents
and materials necessary for the proper disposition of the case[.]” The hearing examiner
submitted his decision to the Secretary of the DHHR (and not to the parties) within forty-
five days. However, the DHHR’s Secretary then held the hearing examiner’s decision for
another three and a half months before disclosing it as part of her Final Administrative
Order. DVCC argues this delay violated its constitutional right to procedural due process.
(continued . . .)
3

 DVCC appealed the agency’s decision to the circuit court. See W.Va. Code

§ 29A-5-4 (2015) (providing procedures for judicial review of contested cases under

State Administrative Procedures Act). By order issued January 15, 2016, the circuit court

agreed with OHFLAC’s interpretation of the administrative rule and justified its decision

largely on pragmatic grounds; it reasoned that behavioral health centers have numerous

regulatory mandates that can only be accomplished by licensed personnel.4 DVCC filed a

timely notice of appeal from this judgment.

See Syl. Pt. 7, Allen v. West Virginia Human Rights Comm’n, 174 W.Va. 139, 141, 324
S.E.2d 99, 101 (1984) (holding West Virginia Constitution places affirmative duty on
administrative agencies performing quasi-judicial functions to dispose promptly of
matters properly submitted). DVCC claims the Secretary’s delay caused tangible harm
because it was forced to spend time and money to obtain an extension of its CON from
the WVHCA.

Because we find DVCC failed to demonstrate “actual and substantial prejudice” as
a result of the delay, we do not grant relief on this basis. See Miller v. Moredock, 229
W.Va. 66, 72, 726 S.E.2d 34, 40 (2011) (holding when party asserts constitutional right
to due process has been violated by administrative delay in issuance of final order, he or
she must demonstrate actual and substantial prejudice as a result of delay). Nevertheless,
we take this opportunity to comment on the complete lack of contrition shown by the
DHHR for the lengthy period of time that ensued between the administrative hearing and
the issuance of the final ruling. Rather than offering any explanation for the delay that
occurred, the DHHR chose instead to criticize the circuit court for taking more than a
year to render its decision. This Court is troubled with the cavalier attitude the DHHR has
taken with regard to its failure to meet its regulatory obligations.
4
At the administrative hearing held in this matter, Dr. Lowther-Berman testified
that licensure of professional staff should be required considering the complex regulatory
requirements of behavioral health centers. She opined the centers have numerous
mandates that could best be accomplished by licensed personnel; she conceded, however,
that a non-licensed individual with the correct experience, education, and knowledge
could comply with those mandates.
(continued . . .)
4

 II. STANDARD OF REVIEW

To resolve this question of law, we examine an administrative rule coupled

with a statutory provision. Thus, we apply plenary review. “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). We are further mindful that: “The judiciary is the final authority

on issues of statutory construction, and we are obliged to reject administrative

constructions that are contrary to the clear language of a statute.” Syl. Pt. 5, CNG

Transmission Corp. v. Craig, 211 W.Va. 170, 564 S.E.2d 167 (2002).

III. DISCUSSION

This case presents a narrow legal question: whether West Virginia Code of

State Rules § 64-11-5.5g should be read – as interpreted by the agency – as requiring all

counselors at behavioral health centers to be professionally licensed counselors.

OHFLAC argues that the rule is ambiguous and therefore this Court should defer to the

agency’s construction of the rule. DVCC counters that the rule should be applied as

Therefore, OHFLAC raised public-policy arguments in support of its position that
the exemption set forth in West Virginia Code § 30-31-11(a)(4) should not apply to
counselors employed at behavioral health centers. These public-policy arguments should
be directed to the legislature, not to the courts. See Syl. Pt. 2, Huffman v. Goals Coal Co.,
223 W.Va. 724, 679 S.E.2d 323 (2009) (“This Court does not sit as a superlegislature,
commissioned to pass upon the political, social, economic or scientific merits of statutes
pertaining to proper subjects of legislation. It is the duty of the Legislature to consider
facts, establish policy, and embody that policy in legislation. It is the duty of this Court to
enforce legislation unless it runs afoul of the State or Federal Constitutions.”).

5

written and the agency exceeded its authority by interpreting a rule that is unambiguous.

Further, DVCC asserts both the agency and the circuit court failed to recognize that, as a

non-profit corporation, DVCC’s counselors are statutorily exempt from the professional

licensure requirement. The crux of DVCC’s argument is that there is no ambiguity in

either the rule or statute and when their plain language is applied, there is no impediment

to it obtaining a behavioral health center license. We agree.

This Court has consistently held that where the language of a statute is clear

and unambiguous, we must apply it as written, without resort to tools of statutory

construction. “‘Where the language of a statute is clear and without ambiguity the plain

meaning is to be accepted without resorting to the rules of interpretation.’ Syllabus Point

2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).” Syl. Pt. 3, Tribeca Lending

Corp. v. McCormick, 231 W.Va. 455, 745 S.E.2d 493 (2013); accord Syl. Pt. 5, State v.

General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959)

(“When a statute is clear and unambiguous and the legislative intent is plain, the statute

should not be interpreted by the courts, and in such case it is the duty of the courts not to

construe but to apply the statute.”). The same principle applies to administrative rules.5

5
As we held in syllabus points two and three of West Virginia Health Care Cost
Review Authority v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996):

Once a disputed regulation is legislatively approved, it
has the force of a statute itself. Being an act of the West
Virginia Legislature, it is entitled to more than mere
deference; it is entitled to controlling weight. As authorized
(continued . . .)
6

As this Court recognized in syllabus point four of CNG Transmission: “‘A statute, or an

administrative rule, may not, under the guise of “interpretation,” be modified, revised,

amended or rewritten.’ Syllabus Point 1, Consumer Advocate Div’n v. Public Service

Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989).” 211 W.Va. at 171, 564 S.E.2d at 168;

see Syl. Pt. 3 Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“While long

standing interpretation of its own rules by an administrative body is ordinarily afforded

much weight, such interpretation is impermissible where the language is clear and

unambiguous.”); Syl. Pt. 1, English Moving & Storage Co. v. Public Serv. Comm’n of

W.Va., 143 W.Va. 146, 100 S.E.2d 407 (1957) (stating in context of administrative rule

that “[w]hen a valid written instrument is clear and unambiguous it will be given full

force and effect according to its plain terms and provisions”).

The administrative rule at issue provides that “[a]ll professional staff and

consultants of the Center shall be in compliance with applicable State professional

licensure requirements.” W.Va. Code R. § 64-11-5.5g. Looking first to the plain and

by legislation, a legislative rule should be ignored only if the
agency has exceeded its constitutional or statutory authority
or is arbitrary or capricious.

If the language of an enactment is clear and within the
constitutional authority of the law-making body which passed
it, courts must read the relevant law according to its
unvarnished meaning, without any judicial embroidery. Even
when there is conflict between the legislative rule and the
initial statute, that conflict will be resolved using ordinary
canons of interpretation.

7

ordinary meaning of the language in the rule, we note that the word “applicable” makes

clear that professional staff and consultants at a behavioral health center must be in

compliance with the professional licensure requirements that “apply” to them. Simply

stated, this rule articulates that the agency must ascertain which licensure requirements

are applicable and require staff members to be in compliance. The rule’s directive is

straightforward. In locating the applicable State professional licensure requirements, we

look to the provision of the West Virginia Code under which professional counselors are

licensed, West Virginia Code §§ 30-31-1 to -17 (2015), entitled “Licensed Professional

Counselors.” West Virginia Code § 30-31-1 sets forth the general requirement that

persons engaging in professional counseling must hold a license.6 However, the following

activities are exempt from this requirement: “The official duties of persons serving as

professional counselors . . . whether as volunteers or for compensation or other personal

gain, in any public or private nonprofit corporations, organizations, associations or

charities[.]” W.Va. Code § 30-31-11(a)(4).

6
The statute provides:

It is unlawful for any person to practice or offer to
practice professional counseling or marriage and family
therapy in this State without a license issued under the
provisions of this article, or advertise or use any title or
description tending to convey the impression that the person
is a licensed professional counselor or a licensed marriage
and family therapist unless the person has been licensed under
the provisions of this article, and the license has not expired,
been suspended, revoked or exempted.

W.Va. Code § 30-31-1.

8

 DVCC is a nonprofit corporation registered with the West Virginia

Secretary of State and, therefore, is exempt from the licensure requirements of West

Virginia Code § 30-31-1. W.Va. Code § 30-31-11(a)(4). Consequently, because the

licensure requirements of West Virginia Code § 30-31-1 do not apply to DVCC as a

nonprofit, those requirements do not constitute an “applicable State professional licensure

requirement” with which DVCC must comply. Thus, the fact that DVCC does not

employ a licensed counselor is not a valid reason for OHFLAC to deny its application for

a behavioral health center license under the rule at issue.

In an attempt to avoid this obvious conclusion, OHFLAC asserts several

flawed arguments. OHFLAC maintains that the administrative rule is ambiguous “[a]s

shown by this litigation” in its attempt to persuade this Court to give deference to its

interpretation. However, OHFLAC neglects to provide any explanation as to how the rule

is ambiguous. OHFLAC does not articulate what language in the rule suggests that the

exemption for counselors at nonprofits set forth in West Virginia Code § 30-31-11(a)(4)

does not apply to behavioral health centers; it cannot when faced with such clear

language. The lack of a foundation for these arguments reveals that OHFLAC is clinging

to nothing more than a litigation position created solely to justify its denial of DVCC’s

application. As such, the agency’s interpretation is not entitled to deference here. See

West Virginia Health Care Cost Review Auth. v. Boone Mem’l Hosp., 196 W.Va. 326,

334, 472 S.E.2d 411, 419 (1996) (noting courts customarily withhold deference from

agency’s litigation position).
9

 At oral argument in this matter, OHFLAC advanced the claim that pursuant

to statute, the Secretary of the DHHR “may make such terms and regulations in regard to

the conduct of any licensed hospital, center or institution, or part of any licensed hospital,

center or institution, as he or she thinks proper and necessary.” W.Va. Code § 27-9-1

(2013). OHFLAC maintains the agency has the authority to require all professional staff

and consultants of behavioral health centers hold professional licensure pursuant to West

Virginia Code § 30-31-1 notwithstanding the exemption set forth in West Virginia Code

§ 30-31-11(a)(4). The problem with OHFLAC’s rationale here is simple: The words of

its administrative rule do not say that. There is simply no language in the rule indicating

that it should be interpreted in the way advanced by OHFLAC. 7

7
Had DHHR/OHFLAC meant to require licensure for all counselors, including
those employed by nonprofit corporations, the drafters of the administrative rule could
have said something to the effect that “[a]ll professional staff and consultants of the
Center shall be in compliance with the State professional licensure requirements set forth
in West Virginia Code § 30-31-1 and the exemption set forth in West Virginia Code § 30­
31-11(a)(4) is not applicable.” But the rule says nothing of the sort.

If the rule contained such language, then our inquiry would be whether the
administrative rule was contrary to statute. See Syl. Pt. 11, Simpson v. W.Va. Office of
Insurance Comm’r, 223 W.Va. 495, 678 S.E.2d 1 (2009) (“‘Procedures and rules
properly promulgated by an administrative agency with authority to enforce a law will be
upheld so long as they are reasonable and do not enlarge, amend or repeal substantive
rights created by statute.’ Syllabus point 4, State ex rel. Callaghan v. West Virginia Civil
Service Commission, 166 W.Va. 117, 273 S.E.2d 72 (1980).”); Anderson & Anderson
Contractors, Inc. v. Latimer, 162 W.Va. 803, 807-08, 257 S.E.2d 878, 881 (1979)
(“Although an agency may have power to promulgate rules and regulations, the rules and
regulations must be reasonable and conform to the laws enacted by the Legislature.”).

10

 Accordingly, OHFLAC’s construction is contrary to the statutory and

regulatory schemes, while DVCC’s construction is consistent with them. We therefore

hold that OHFLAC’s interpretation of West Virginia Code of State Rules § 64-11-5.5g,

as requiring all professional counselors to be professionally licensed, is unsupported by

the language of the rule and contrary to West Virginia Code § 30-31-11(a)(4), in which

the Legislature exempted all counselors working at nonprofit organizations from having

to be licensed.

IV. CONCLUSION

For the reasons stated above, we reverse the January 15, 2016, order of the

Circuit Court of Kanawha County and remand this matter for further proceedings

consistent with the directives contained in this opinion.

Reversed and remanded.

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