# Putnam County Aging Program, Inc., Fayette County Senior Programs and Summers County Council on Aging v. Panhandle Support Services, Inc.; A Special Touch In Home Care, LLC; Village Caregiving, LLC; Elder Aide Services, LLC, d/b/a Right At Home; and Southern Home Care Services, Inc., d/b/a All Ways Caring HomeCare, and West Virginia Health Care Authority

> Intermediate Court of Appeals of West Virginia · June 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11070233

## Case

- **Court:** Intermediate Court of Appeals of West Virginia
- **Decided:** June 12, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Administrative Agency-Other
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
Spring 2025 Term
June 12, 2025
_____________________ ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS

Nos. 24-ICA-97, 24-ICA-98, 24-ICA-99, 24-ICA-100, OF WEST VIRGINIA

24-ICA-122, and 24-ICA-123
_____________________

PUTNAM COUNTY AGING PROGRAM, INC., FAYETTE COUNTY
SENIOR PROGRAMS and SUMMERS COUNTY COUNCIL ON AGING,

Affected Parties Below, Petitioners,

v.

PANHANDLE SUPPORT SERVICES, INC; A SPECIAL TOUCH IN HOME CARE,
LLC; VILLAGE CAREGIVING, LLC; ELDER AIDE SERVICES, LLC, D/B/A RIGHT
AT HOME; and SOUTHERN HOME CARE SERVICES, INC., D/B/A ALL WAYS
CARING HOMECARE,

Applicants Below, Respondents,

AND

WEST VIRGINIA HEALTH CARE AUTHORITY,

Respondent.
___________________________________________________________

Appeal from the West Virginia Health Care Authority

AFFIRMED, in part, REVERSED, in part, and REMANDED with instructions
_________________________________________________________

Submitted: February 5, 2025
Filed: June 12, 2025
Richard W. Walters, Esq. Brock M. Malcolm, Esq.
Ryan W. Walters, Esq. Michael C. Cardi, Esq.
Shaffer & Shaffer, PLLC Bowles Rice, LLP
Charleston, West Virginia Morgantown, West Virginia
Counsel for Petitioners Counsel for Respondent Panhandle
Support Services, Inc.

John B. McCuskey, Esq. Robert L. Coffield, Esq.
Michael R. Williams, Esq. Shaina D. Massie, Esq.
Caleb A. Seckman, Esq. Nelson Mullins Riley & Scarborough LLP
Frankie Dame, Esq. Huntington, West Virginia
Spencer J. Davenport, Esq. Counsel for Respondents Elder Aide
Office of the WV Attorney General Services, LLC, d/b/a Right at Home;
Charleston, West Virginia Village Caregiving, LLC; and A Special
Counsel for Respondent WV Health Care Touch In Home Care, LLC
Authority

Nathaniel J. Pencook, Esq. Alaina N. Crislip, Esq.
(admitted pro hac vice) Colton Koontz, Esq.
Nelson Mullins Riley & Scarborough LLP Jackson Kelly PLLC
Raleigh, North Carolina Charleston, West Virginia
Counsel for Respondents Elder Aide Counsel for Southern Home Care Services,
Services, LLC, d/b/a Right at Home; Inc.
Village Caregiving, LLC; and A Special
Touch In Home Care, LLC

JUDGE GREEAR delivered the Opinion of the Court.
GREEAR, Judge:

In these consolidated appeals,1 Petitioners Putnam County Aging Program,

Inc. (“PCAP”),2 Fayette County Senior Programs (“FCSP”),3 and Summers County

Council on Aging (“SCCOA”)4 (collectively “Petitioners”)5 appeal the February 7, 2024,

and February 21, 2024, orders of the West Virginia Health Care Authority (“Authority”)

granting A Special Touch In Home Care, LLC (“STHC”); Southern Home Care Services,

Inc. (“Southern”); Elder Aide Services, LLC, d/b/a Right at Home (“Elder”); and Village

Caregiving, LLC’s (collectively “Respondent Providers”) certificate of need (“CON”)

applications to provide in-home personal care services (“PC Services”), through the

1
24-ICA-97, 24-ICA-100, 24-ICA-122, and 24-ICA-123 were consolidated by this
Court’s December 13, 2024, order for purposes of oral argument, consideration, and
decision. 24-ICA-98 and 24-ICA-99 were consolidated by this Court’s December 17, 2024,
order for purposes of oral argument, consideration, and decision. Because issues in each
set of the consolidated cases are similar and involve some of the same parties, for judicial
economy and efficiency, we will decide both sets of consolidated cases together in this
opinion.
2
PCAP is a 501(c)(3) non-profit organization providing meals, transportation, and
in-home care services to qualified seniors in a number of West Virginia counties. 501(c)(3)
refers to PCAP’s tax-exempt status under section 501(c)(3) of the Internal Revenue Code.
See generally 26 U.S.C. § 501(c)(3) (eff. 2019).
3
FCSP is an organization providing meals, transportation, and in-home services to
qualified seniors. As noted in the record, FCSP and PCAP are “one entity” as FCSP is
owned and operated by PCAP and “is a term used to refer to the collective group of aging
program services offered by [PCAP] in Fayette County.”
4
SCCOA is a 501(c)(3) non-profit organization providing meals, transportation, and
in-home services to qualified seniors in Summers County, West Virginia. 501(c)(3) refers
to SCCOA’s tax-exempt status under section 501(c)(3) of the Internal Revenue Code. See
generally 26 U.S.C. § 501(c)(3) (eff. 2019).

For purposes of clarification, in 24-ICA-123, “Petitioners” refers only to PCAP.
5

SCCOA appears as a Petitioner only in case 24-ICA-99.
1
Medicaid program,6 in specific counties in West Virginia.7 On appeal, Petitioners argue

that the Authority erred in granting Respondent Providers’ underlying CON applications,

as there was no unmet need in the proposed service areas; the in-home Personal Care

Services Standards (“PC Standards”) used by the Authority were arbitrary and capricious;

granting Respondent Providers’ CONs would have a negative effect on the community;

and that the Authority was clearly biased against Petitioners. Based upon our review of the

6
In Burgess v. W. Va. Dep’t of Hum. Servs., 250 W. Va. 428, 430-31, 903 S.E.2d
609, 611-12 (Ct. App. 2024), this Court recognized that:

Authorized under Title XIX of the Social Security Act, Medicaid is an
entitlement program financed by the state and federal governments and
administered individually by each state. See 42 U.S.C. § 1396-1. In Forloine
v. Persily, No. CV 3:23-0450, 2024 WL 1316237, at *1 (S.D.W. Va. Mar.
27, 2024), the United States District Court for the Southern District of West
Virginia described Medicaid as a “cooperative federal-state program.” See
Douglas v. Indep. Living Ctr. of S. Cal., Inc., [565 U.S. 606, 610] (2012).
Thus, in exchange for federal funds, states agree to follow “congressionally
imposed conditions” in the Medicaid program. See Armstrong v. Exceptional
Child Ctr., Inc., [575 U.S. 320, 323] (2015).

The West Virginia entity which administers the federal funds received by West Virginia
under title XIX of the Social Security Act is the Bureau for Medical Services (“BMS”).
7
In its February 7, 2024, decision, the Authority approved Village’s CON
application to provide PC Services in Berkeley, Boone, Braxton, Brooke, Cabell, Calhoun,
Clay, Doddridge, Fayette, Gilmer, Grant, Greenbrier, Hampshire, Hancock, Hardy,
Harrison, Jackson, Jefferson, Kanawha, Lewis, Lincoln, Logan, Marion, Marshall, Mason,
McDowell, Mercer, Mineral, Monongalia, Monroe, Morgan, Nicholas, Ohio, Pleasants,
Pocahontas, Preston, Putnam, Raleigh, Randolph, Ritchie, Roane, Summers, Taylor, Tyler,
Upshur, Wayne, Webster, Wetzel, Wirt, Wood, and Wyoming Counties.

In three separate February 21, 2024, decisions, the Authority approved Southern’s
application to provide PC Services in Boone, Clay, Logan, Nicholas, Putnam, and Roane
Counties; Elder’s application to provide PC Services in Cabell, Fayette, Putnam, and
Wayne Counties; and STHC’s application to provide PC Services in Kanawha, Cabell,
Fayette, Putnam, and Wayne Counties.
2
record, including the oral and written arguments of counsel, and applicable law, we

disagree and find no error in the Authority’s approval of Respondent Providers’ CON

applications.

Petitioners also appeal the Authority’s February 8, 2024, Dismissal Orders

granting Panhandle Support Services, Inc.’s (“Panhandle”) motions for summary judgment

and canceling previously scheduled public hearings on Panhandle’s CON applications to

provide PC Services in select counties in West Virginia.8 On appeal, Petitioners argue that

the Authority erred in granting Panhandle’s motions for summary judgment, as the

Authority’s hearing examiner lacked the power to award summary judgment. Further,

FCSP contends that the Authority erred in revoking its “affected person” status. After our

review of the record and consideration of the oral and written arguments of counsel, we

agree, in part, with Petitioners and find that the Authority erred in awarding summary

judgment to Panhandle and in canceling the public hearings on Panhandle’s CON

applications. However, we find no error with the Authority’s determination that FCSP

lacked “affected person” status to challenge Panhandle’s CON application. Accordingly,

we affirm, in part, and reverse, in part, the Authority’s February 8, 2024, Dismissal Orders.

8
24-ICA-98 addresses Panhandle’s CON application to provide PC Services in
Mason, Putnam, Cabell, Wayne, and Lincoln Counties. 24-ICA-99 addresses Panhandle’s
CON application to provide PC Services in Fayette, Raleigh, Summers, Monroe, Mercer,
and Greenbrier Counties.
3
We begin our review of the issues on appeal by generally examining CON

law in West Virginia. CONs are governed by West Virginia Code §§ 16-2D-1 to -20, which

includes a number of provisions outlining CON definitions, powers and responsibility of

the Authority related to CONs, the CON application process, standards by which CONs

are to be reviewed, and how CON review standards are amended. In West Virginia Code

§ 16-2D-1 (2016), the West Virginia Legislature (“Legislature”) declared that it is the

public policy of this state:

(1) That 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 to avoid unnecessary duplication of health
services, and to contain or reduce increases in the cost
of delivering health services.

(2) That the general welfare and protection of the lives,
health[,] and property of the people of this state require
that the type, level[,] and quality of care, the feasibility
of providing such care and other criteria . . . including
[CON] standards and criteria developed by the
[A]uthority pursuant to provisions of this article,
pertaining to health services within this state, be subject
to review and evaluation before any health services are
offered or developed in order that appropriate and
needed health services are made available for persons in
the area to be served.

4
To effectuate the State’s public policy in this regard, West Virginia Code §

16-2D-3(a) (2017) requires that the Authority9 shall (among other duties):

(1) Administer the [CON] program; (2) Review the state health
plan, the [CON] standards, and the cost effectiveness of the
[CON] program and make any amendments and modifications
to each that it may deem necessary . . . (4) Create a standing
advisory committee to advise and assist in amending the state
health plan, the [CON] standards, and performing the state
agencies’ responsibilities.

Additionally, the Legislature, in West Virginia Code § 16-2D-6(a),

promulgated procedures for the Authority to follow in making changes to CON standards,

including filing with the Secretary of State, for publication in the State Register, “a notice

of proposed action, including the text of all proposed changes, and a date, time[,] and place

for receipt of general public comment.” This code section further requires the Authority to

form task forces (comprised of representatives of consumers, business, providers, payers,

and state agencies) to assist in satisfying its review and reporting requirements.

Moreover, West Virginia Code § 16-2D-6(f) (2016) mandates that all

proposed changes to CON standards (with records of the public hearing or written

9
“Authority” is defined in West Virginia Code § 16-2D-2(5) (2017) as the West
Virginia Health Care Authority. We note that West Virginia Code § 16-2D-2 was amended
in 2023 and 2024, but those amendments did not address or affect § 16-2D-2(5).

5
statements and documents received during the public comment period) be presented to the

Governor. Within thirty days of receipt of said materials, the Governor “shall either

approve or disapprove all or part of the amendments and modifications.” Lastly, West

Virginia Code § 16-2D-12(a)(1)-(2) (2016) provides that a CON may only be issued if the

proposed health service is found to be needed and is consistent with the state health plan,

unless there are emergency circumstances that pose a threat to public health.

The legislative rules for the Authority related to CONs are set forth in W.

Va. Code R. § 65-32-1 to -21 (2022).10 These rules implement the provisions of the CON

program found in West Virginia Code §§ 16-2D-1 to -20, and include rules regarding CON

requirements and standards, CON applications, the CON application review process, the

requirements of the Authority’s decision in CON cases, and appeals of the Authority’s

CON decisions. Critical to the underlying cases, W. Va. Code R. § 65-32-8.11 requires the

“Authority [to] hold a public hearing on [a CON] application if it is requested within the

time period11 . . . by any affected person.” The rules further require that the “Authority

shall conduct the public hearing in accordance with the requirements for administrative

10
W. Va. Code R. § 65-32-1-21 was filed on April 1, 2022, and became effective
that same date. These rules were amended by the Legislature on May 1, 2024 (effective
May 1, 2024); however, the provisions cited herein were unchanged by the 2024
amendments.
11
W. Va. Code R. § 65-32-8.14 requires that such hearings shall “be conducted no
later than three (3) months from the date the hearing order is entered by the Authority and
in accordance with the administrative hearing requirements in [West Virginia Code §§
29A-5-1-20].”
6
hearings found in West Virginia Code [§§ 29A-5-1-20].” W. Va. Code R. § 65-32-8.25

provides that “[t]he affected parties may engage in discovery as provided by the West

Virginia Rules of Civil Procedure.”

As noted in W. Va. Code R. § 65-32-8.11, the Authority is required to

conduct public hearings (if timely requested by an affected person) pursuant to West

Virginia Code §§ 29A-5-1 to -5, known generally as the Administrative Procedures Act

(“APA”). West Virginia Code § 29A-5-1(a) provides that “[i]n any contested case all

parties shall be afforded an opportunity for hearing after at least ten days’ written notice.”

This statutory section further provides, at subsection (d), that

the hearing examiner . . . shall have the power to: (1)
Administer oaths and affirmations, (2) rule upon offers of
proof and receive relevant evidence, (3) regulate the course of
the hearing, (4) hold conferences for the settlement or
simplification of the issues by consent of the parties, (5)
dispose of procedural requests or similar matters, and (6) take
any other action authorized by a rule adopted by the agency . .
.

Each of the underlying cases involves the Authority’s consideration of

Respondent Providers’ CON applications to provide PC Services in certain West Virginia

counties. In addition to meeting statutory requirements and abiding by the associated

legislative rules related to their CON applications, said providers must also meet the PC

Standards for each county in which they applied to provide services. The PC Standards

used by the Authority in consideration of Respondent Providers’ underlying CON

7
applications were revised by the Authority in 2022-2023, via the processes outlined in West

Virginia Code §§ 16-2D-6, and were approved by the Governor on April 27, 2023.12

On their face, these amended PC Standards denote that they “address the

necessary criteria which must be met to obtain a [CON] to provide” PC Services. PC

Services are therein denoted as “services available to assist an eligible [patient] to perform

activities of daily living and instrumental activities of daily living in the [patient’s] home,

place of employment[,] or community.” The PC Standards further require, under “need

methodology” that all CON applicants for such service “must demonstrate[,] with

specificity[,] that:

1. There is an unmet need for the proposed service;

2. The proposed service will not have a negative effect on the
community by significantly limiting the availability and
viability of other services or providers; and

3. The proposed services are the most cost effective
alternative.

The process used within the 2023 PC Standards to quantify unmet need, on

a county by county basis, is as follows:

1. Total [n]umber of [r]esidents receiving Medicaid per
county;

12
We acknowledge that, in their appeals herein, Petitioners argue that the PC
Standards were not properly amended by the Authority in 2023 and that said amendments
were arbitrary and capricious, which we will discuss in this opinion.
8
2. Total [n]umber of [r]esidents receiving Medicaid per
county multiplied by 3% (this will give the total number of
residents who may be receiving [PC Services] or who may
benefit from receiving services).

3. The total [n]umber of [r]esidents, as reported by BMS, who
are receiving [PC Services] is subtracted from the [t]otal
[n]umber of residents in step two.

4. If there is an unmet need of 25 or more then the [c]ounty is
considered open to additional providers.

5. If a new provider has been approved within the previous 12
months, the Authority will subtract 25 from each applicable
county proposed.

Prior to the 2023 amendment, the PC Standards were last amended in 2016.

The 2023 PC Standards are similar to the 2016 PC Standards, with the exception of the

multiplier used in the unmet need formula. In 2016, the multiplier was 1.25%, compared

to its present 3%.

Standard of Review for all cases on appeal

This Court has jurisdiction over the appeals herein pursuant to West Virginia

Code § 16-2D-16a(a) (2021). Pursuant to West Virginia Code §§ 16-2D-16a(a)(2) (2021)

and 29A-5-4(g) (2021), our standard of review for certificate of need decisions issued by

the Authority is set forth as follows:

The court may affirm the order or decision of the agency or
remand the case for further proceedings. It 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, decision, or order are:

9
(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the
agency;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(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.

West Virginia Code § 29A-5-4(g) (2021). Further, “‘[i]nterpreting a statute or an

administrative rule or regulation presents a purely legal question subject to de novo

review.’” Syl. Pt. 4, Amedisys W. Va., LLC v. Pers. Touch Home Care of W. Va., Inc., 245

W. Va. 398, 859 S.E.2d 341 (2021) (quoting Syl. Pt. 2, Steager v. Consol. Energy, Inc.,

242 W. Va. 209, 832 S.E.2d 135 (2019)). With these standards in mind, we now address

the underlying cases.

Cases 24-ICA-98 and 24-ICA-99

Facts and Procedural Background

We first turn to the two matters involving Respondent Panhandle. On June

1, 2023, the Authority received two separate “letters of intent” from Panhandle, in which

Panhandle advised of its intent to file CON applications to provide PC Services in certain

10
West Virginia counties.13 Panhandle timely followed its letters of intent by filing the

underlying CON applications with the Authority. In its CON applications, Panhandle

advised that it already “provid[ed] these [PC Services in the areas at issue] through a

contractual agreement with a partner that holds a [CON].”14 Thus, Panhandle noted “[t]here

would be no change in the continuity of services and accessibility with the approval of the

CON[s].” Moreover, when asked to identify alternatives to the CON proposal (in its CON

applications, Panhandle stated:

The alternative to this proposal is [Panhandle] not providing
care to the [patients] it already provides care to. The personal
care program of WVDHHR is going to eliminate the capability
of subcontracting CON[s]. This will lead to a loss of care to
[patients] already enrolled in the [PC Services] program and
are serviced by direct care workers employed by [Panhandle].
Additionally, this would mean a loss of employment for direct
care workers providing this service.

13
In the first letter, Panhandle advised of its intent to file a CON application to
provide PC Services in Mason, Putnam, Cabell, Wayne, and Lincoln Counties. In the
second letter, Panhandle indicated its intent to file a CON application to provide PC
Services in Fayette, Raleigh, Summers, Monroe, Mercer, and Greenbrier Counties.
14
At the time of the filing of its underlying CON applications, Panhandle provided
PC Services in the geographic areas at issue under a July 21, 2004, subcontractor agreement
(“Services Agreement”) with Prestera Center for Mental Health Services, Inc. (“Prestera”),
who then held a CON permitting it to provide PC Services in these areas. In the Services
Agreement, a “Catchment Area” (to which the subcontractor agreement allegedly applied)
was defined as Cabell, Wayne, Lincoln, Mason, Putnam, Kanawha, Boone, and Clay
Counties. An addendum was added to the Services Agreement on October 5, 2023, which
clarified the definition of the “Catchment Area” to include counties in which Prestera holds
a CON for PC Services, including Summers County.
11
Panhandle’s CON applications were “deemed completed” by the Authority

on June 15, 2023.15 By letter dated June 5, 2023, PCAP wrote to the Authority to protest

Panhandle’s letter of intent for the Mason, Cabell, Putnam, Lincoln, and Wayne County

service area.16 On June 6, 2023, SCCOA wrote to the Authority to protest Panhandle’s

letter of intent for Fayette, Raleigh, Summers, Monroe, Mercer, and Greenbrier Counties.

By letter dated June 13, 2023, FCSP wrote to the Authority to protest Panhandle’s letter of

intent for the Fayette, Raleigh, Summers, Monroe, Mercer, and Greenbrier Counties.17

15
There is no argument raised, by any party, that Panhandle’s CON applications
were not “complete” or that the Authority did not properly provide legal notice of the CON
applications to potentially affected persons.
16
In its June 5, 2023, letter, PCAP advised that it currently provided PC services
throughout Putnam County and had the capacity to serve any additional individuals
identified in need of its services. Further, PCAP noted that there were currently ten
approved PC service providers in Putnam County, “which ensures program members
already have adequate choice.” PCAP additionally stated that the demand for its services
“greatly outweighs the state and federal funding” it receives to provide care, in that “[o]nly
50% of [its] current meal participants are covered by [its] state and federal awards.”
Because of this shortage in funding, PCAP claimed that it “reinvest[ed] [its] revenues
generated by providing Medicaid Personal Care services into [its] nutrition and
transportation programs, enabling [it] to serve additional participants.” Thus, PCAP argued
that granting Panhandle’s CON applications would “have a negative effect on the
community [of Putnam county] as a whole by limiting the availability and viability of
[PCAP’s] nutrition and transportation programs.”
17
Like PCAP, both FCSP and SCCOA indicated that they too reinvested revenues
from providing PC Services into their nutrition and transportation programs, allowing them
to serve additional persons. Accordingly, SCCOA and FCSP stated that the proposed CON
application could be detrimental to their service programs and “have a negative effect on
the community as a whole by limiting the availability and viability of [its] nutrition and
transportation programs.”
12
PCAP again wrote to the Authority, on July 11, 2023, and identified itself as

an affected person as to Panhandle’s CON application in 24-ICA-98, objected to said

application, and requested that the Authority hold a public hearing. Like PCAP, both

SCCOA (by letter dated July 11, 2023) and FCSP (by letter dated July 17, 2023), in 24-

ICA-99, wrote to the Authority and identified themselves as affected persons to

Panhandle’s CON application, objected to the application, and requested the Authority hold

a public hearing. The Authority, by letters dated July 17, 2023, acknowledged receipt of

these letters requesting affected person status and requests for an administrative (public)

hearing.18 On August 1, 2023, the Authority issued Notices of Prehearing Conference and

Administrative Hearing, noting that prehearing conferences would be held on Panhandle’s

CON applications on October 6, 2023, and administrative (public) hearings would be held

on October 16, 2023, and October 13, 2023.

Panhandle filed motions for summary judgment in both of its underlying

cases on October 2, 2023. In these motions, Panhandle argued that public hearings were

not necessary, as Petitioners would simply argue that despite the establishment of an unmet

need in the counties at issue (using the 2023 PC Standards and need methodology) that

there was no actual need for PC Services in these counties. Panhandle alleged that there

was no merit to Petitioners’ arguments in this regard, as 1) Panhandle already provided PC

There is no indication in the Authority’s July 17, 2023, letter directed to FCSP,
18

that FCSP did not qualify as an affected person.
13
Services within the areas at issue as a subcontractor for Prestera; and 2) the Authority had

already approved some of Panhandle’s other CON applications (using the same PC

Standards and methodology), which Panhandle had filed contemporaneously with the two

CON applications at issue herein.

In PCAP’s response to Panhandle’s motions, it argued that summary

judgment was improper because the evidentiary record was incomplete, as PCAP had not

yet had the opportunity, via public hearing, to question persons regarding the CON

application at issue. PCAP argued that it anticipated that multiple witnesses would testify

at the previously scheduled public hearings, under oath, to “matters not yet disclosed by

either side.” Further, PCAP was critical of Panhandle’s “mischaracterization” of the

arguments that PCAP would advance at the public hearing and noted that it had not yet

provided any argument in this matter and that Panhandle’s “misallocation” of PCAP’s

position “highlighted the significance of PCAP’s argument that an incomplete evidentiary

record” creates “a high risk of” the Authority “improperly reaching a conclusion.”

Additionally, PCAP renewed its arguments that the PC Services proposed in Panhandle’s

CON applications would have a negative effect on the community by limiting other

services – namely the nutrition and transportation services provided by PCAP, which are

funded, in part, by PCAP’s provision of PC Services.

On October 4, 2023, Panhandle filed, in 24-ICA-99, an amended motion for

dismissal of affected persons, seeking dismissal of FCSP. In its amended motion,

14
Panhandle alleged that FCSP “is a wholly fictional entity[,]” which does not qualify as an

affected person under West Virginia Code § 16-2D-2.19

The pretrial conference hearing before the Authority’s hearing examiner was

completed, in 24-ICA-98, on October 6, 2023. At that hearing, Panhandle argued in support

of its motion for summary judgment and stated

[t]his is not a case of a new provider coming into a service area
and stealing away clients or stealing away employees. This is
a provider who has been in the area for a number of years. And
the granting [of] the CON won’t affect any other entity except
the entity to which it has its subcontractor arrangement, and
that entity is not objecting to this application.

In response, PCAP argued that a motion for summary judgment was itself

improper as there is “no mechanism for a Rule 56” motion under the Authority’s policies

and procedures or the APA. Further, PCAP argued that summary judgment is not proper

as discovery is ongoing and PCAP intended to obtain evidence in support of its position at

the public hearing. Counsel for PCAP was directly questioned by the hearing examiner as

to what “material facts” remain in dispute, to which PCAP again expressed the need for

the public hearing to permit PCAP the opportunity to elicit such facts in support of its

position. Specifically, PCAP argued that “[i]t’s our intent through . . . the evidentiary

19
Panhandle argued that during testimony in an unrelated CON matter, it discovered
that FCSP is not a company, an affiliate of another company, or even a d/b/a of a company
that is licensed to do business within the State of West Virginia. Instead, Panhandle argued
that it is PCAP, not FCSP, that is the affected person, if any, in 24-ICA-99.
15
hearings to elicit facts that [Panhandle] cannot meet with specificity, cannot demonstrate

the elements necessary to meet number one and number two of the need methodology.”

PCAP identified that it would establish such facts through evidentiary testimony of PCAP’s

director and through the testimony of Panhandle’s representatives.

Despite the protestations of PCAP’s counsel, the hearing examiner granted

Respondent Panhandle’s motion for summary judgment. First, the hearing examiner ruled

that the Authority under the “authority of the APA” had the “ability to entertain dispositive

motions.” Second, the hearing examiner concluded that summary judgment was

appropriate, as there was no genuine issue of material fact that would be produced by PCAP

“that would entitle [it] to judgment as a matter of law because need methodology has been

established and there are no facts that could be shown that the provision of personal care

services under an individual CON would affect the affected parties negatively.” A

Dismissal Order was entered by the Authority, in 24-ICA-98, on February 8, 2024.

In 24-ICA-99, a pretrial hearing was also held on October 6, 2023. During

that hearing, Panhandle argued in support of its motion for summary judgment and its

amended motion seeking dismissal of FCSP as an affected person.20 FCSP argued that

20
Panhandle argued that dismissal of FCSP as an “affected [person]” was necessary,
as FCSP did not meet the definition of affected person in West Virginia Code § 16-2D-
2(1)(A)-(H). However, Panhandle noted that dismissal of FCSP as an affected person
would not prevent FCSP’s representatives from attending any public hearing in 24-ICA-
99, as a member of the public. Panhandle noted that at the public hearing, FCSP would be
16
Panhandle’s amended motion was untimely filed, as it was not filed within the time frame

contemplated within the scheduling order. Instead, it was filed a day late, on October 4,

2023. As such, FCSP argued that the amended motion should not be considered. Panhandle

acknowledged its late filing of the amended motion but advised it was completed in the

immediate days following a public hearing in another matter where PCAP’s executive

director testified as to the relationship between FCSP and PCAP and disclosed that FCSP

was not a legal entity.

As to the amended motion, FCSP argued that it was an affected person under

West Virginia Code § 16-2D-2(1) and, accordingly, dismissal was improper. FCSP advised

that FCSP “is a term used to refer to the collective group of aging program services offered

by [PCAP] in Fayette County. [PCAP] and [FCSP] are one in the same and can be used

synonymously.” Accordingly, FCSP stated that it qualified as an affected person under the

applicable statue.

SCCOA also filed a formal response to Panhandle’s amended motion and

motion for summary judgment in 24-ICA-99, advancing arguments similar to those

advanced by PCAP in the underlying companion case. Namely, SCCOA argued that there

was no unmet need for in-home personal care services in Summers County, but that even

able to offer comments on Panhandle’s CON application in 24-ICA-99, but acknowledged
that without affected person status, FCSP would “not be permitted to offer any evidence,
present any exhibits, or make any legal arguments whatsoever[.]”
17
if an unmet need existed in Summers County, the 2023 PC Standards and need

methodology identified only 59 recipients with an unmet need. However, SCCOA noted

that there were two other pending CON applications for providers seeking to provide PC

Services in Summers County, and that if those applications are granted, the number of

persons with an unmet need would drop below 25, which would establish that there is no

unmet need for PC Services in Summers County. SCCOA also argued that the record in

the underlying case was not complete, as it was not permitted to take testimony from

witnesses at the public hearing on the issue of unmet need and revised need methodology.21

Again, despite the protestations of SCCOA and FCSP, the hearing examiner

awarded summary judgment to Respondent Panhandle at the pretrial hearing and dismissed

FCSP as an affected person. Following the hearing, on February 8, 2024, the Authority

entered its Dismissal Order, in which it concluded that FCSP is not a legal entity meeting

any of the definitions that would afford it affected person status under West Virginia Code

§ 16-2D-2. The Authority acknowledged that Panhandle failed to follow the Authority’s

administrative rules by not timely filing its amended motion, but found the delay

inconsequential, as it was the duty of the Authority to determine a person’s eligibility for

affected person status.

21
Additionally, SCCOA argued that if the CON application was granted (in 24-
ICA-99) that it would have a “direct negative effect on its citizens in jeopardizing its ability
to offer other services to seniors, including but not limited to nutrition and transportation,
that are significantly funded with profits from in-home personal care and waiver services.”
18
As to SCCOA, the Authority determined that SCCOA failed to assert the

existence of any material issues of fact that needed to be addressed at a public hearing. The

Authority contends that it “allowed” both PCAP and SCCOA, during the pretrial

conferences,

a separate opportunity to develop its record with regard to the
Authority’s procedures in developing and submitting the 2023
PC Standards to the Governor for his approval. As such, it
[was] unnecessary for the public hearing to be held in order to
develop that issue. Similarly, it [was] unnecessary to hold a
public hearing to allow an affected party to attack the [CON]
Application’s purported potential impact on ‘other services,’
such as food delivery services, which are wholly unrelated to
the PC Services at issue here.

The Authority ruled that it had previously, and consistently, found that “other

services” must be related to the service at issue in the CON application to be considered.

The Authority gave great weight to the fact that Panhandle had been providing PC Services

in the target service area for years (through its sub-contract agreement), such that the

granting of Panhandle’s CON application in 24-ICA-99 would “not create any new

negative impact on any services offered by the affected person.” It is from the February 8,

2024, Dismissal Orders that Petitioners now appeal.

Discussion

On appeal, Petitioners advance five assignments of error. As their first three

assignments of error address the propriety of the hearing examiner’s award of summary

judgment to Panhandle, we will address those assignments together. See generally Tudor’s

19
Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (per

curiam) (consolidating assignments of error). Petitioner FCSP also argues, in 24-ICA-99,

that the Authority erred when it found that FCSP was wrongfully provided “affected

person” status. Additionally, Petitioners contend that the Authority “improperly

promulgated” its 2023 PC Standards need methodology, rendering such standards arbitrary

and capricious.

First, we address FCSP’s argument that the Authority erred when it found

FCSP was wrongfully provided “affected person” status. “Affected person” is defined in

West Virginia Code § 16-2D-2(1)(A)-(H) (2017)22 as:

(A) The applicant; (B) An agency or organization representing
consumers; (C) An individual residing within the geographic
area but within this state served or to be served by the
applicant; (D) An individual who regularly uses the health care
facilities within that geographic area; (E) A health care facility
located within this state which provide[s] services similar to
the services of the facility under review and which will be
significantly affected by the proposed project; (F) A health care
facility located within this state which, before receipt by the
authority of the proposal being reviewed, has formally
indicated an intention to provide similar services within this
state in the future; (G) Third-party payors who reimburse
health care facilities within this state; or (H) An organization
representing health care providers[.]

22
We note that West Virginia Code § 16-2D-2 (2017) was amended by the West
Virginia Legislature in 2023 and 2024, but those amendments did not address or affect §
16-2D-2(1)(A)-(H).
20
As the Supreme Court of Appeals of West Virginia (“SCAWV”) held in

syllabus point 4 of Clark v. West Virginia Consolidated Public Retirement Board, No. 24-

208, 2025 WL 1261082 (W. Va. 2025), “‘[a] statutory provision which is clear and

unambiguous and plainly expresses the legislative intent will not be interpreted by the

courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877,

65 S.E.2d 488 (1951).” Below, the Authority’s hearing examiner found that FCSP “failed

to meet the definition of an affected party[.]” Based upon our review of the record, and

applicable law, including the clear and unambiguous definitions set forth in West Virginia

Code § 16-2D-2(1)(A)-(H) (2017), we agree with the Authority.

Here, the record established that FCSP was not the CON applicant, an

“agency or organization representing consumers[,]” an individual residing in the

geographic area, an individual who regularly uses the health care facilities within the

geographic area, a health care facility, a third-party payor, or an organization representing

health care providers. Moreover, the record further established that FCSP was not, itself, a

501(c)(3) non-profit organization; was not a corporation, LLC, or other company registered

with the West Virginia Secretary of State’s Office; and was not a d/b/a or a registered

affiliate of PCAP.

Instead, FCSP acknowledged that it was legally operating as PCAP, and

suggested that there “should have been no confusion as to the fact that [PCAP and FCSP]

are one in the same entity[,] as it was clearly set forth in the document requesting affected

21
party status.” 23 FCSP described that PCAP and FCSP are “one in the same[;]” that their

company names “can be used synonymously[;]” and that “everything [FCSP does] goes

through [PCAP.]” In essence, FCSP argued that acknowledging FCSP as an affected party

was the same as acknowledging PCAP as an affected party, as FCSP was PCAP. We are

not persuaded by this circular argument, as it is contrary to the express representations

contained within FCSP’s letters to the Authority in 24-ICA-99.24

Further, important to this issue, is the Authority’s recognition below that, in

the underlying and other CON cases, PCAP and FCSP “have acted as though they are

separate entities with their actions and the Authority has treated them as separate entities

with[in] their CON processes.” We agree with the Authority and find that FCSP’s

arguments to the contrary are belied by the record citing multiple incidences in which FCSP

and PCAP were treated as separate entities by the Authority.

During arguments before the hearing examiner FCSP’s executive director

made statements to suggest that the June 13, 2023, letter was sent on behalf of FCSP,

23
In support of its argument, FCSP relies upon the small print “acknowledgement”
on the bottom of its letterhead titled Fayette Senior Programs indicating that “Fayette
Senior Programs is owned and operated by [PCAP].”
24
In its June 13, 2023, letter to the Authority objecting to Panhandle’s CON
application in 24-ICA-99, FCSP expressly noted that “[FCSP] is a 501c3 non-profit
organization . . .” Moreover, in this letter, FCSP’s Director states that he is “writing this
letter on behalf of FCSP[.]”
22
instead of PCAP, because of an error made by FCSP’s then-director (changing the name

of PCAP to FCSP in a draft letter sent to FCSP’s then-director by PCAP’s executive

director). We find no merit in this argument. If FCSP made some error in its June 13, 2023,

letter by changing PCAP to FCSP, the record reflects no efforts were made by FCSP or

PCAP to correct this alleged error. In fact, on July 17, 2023, a second letter was sent to the

Authority by FCSP in which FCSP again asked that it, not PCAP, be identified as an

affected party in 24-ICA-99, and requested a public hearing. Accordingly, based on the

foregoing we find no clear error and no abuse of discretion in the Authority’s dismissal of

FCSP as an “affected party.”25

As to summary judgment, Petitioners argue, in part, that the Authority’s

award of summary judgment to Panhandle was improper, as the hearing examiner lacked

authority to grant summary judgment. We agree and find that the hearing examiner

improperly awarded summary judgment to Panhandle in the underlying cases.

West Virginia law on the entitlement to a public hearing by affected persons

in CON application cases is clearly stated. W. Va. Code R. § 65-32-8.11 mandates that the

25
We note that no argument was advanced by any party that FCSP was improperly
identified as an affected party in 24-ICA-100, 24-ICA-122, and 24-ICA-123. As no
argument was raised by any party as to FCSP in the aforementioned cases, we do not
address FCSP’s “affected party” status in those cases.
23
“Authority shall hold a public hearing on [a CON] application if it is requested within the

time period . . . by any affected person.” (Emphasis Added).

As the SCAWV referenced in Clark:

use of the term “shall” in a statute means that the agency to
which the statute is directed must carry out the action described
therein; it may not use its own discretion with regard to
whether the described action should or should not be
performed. See Syl. Pt. 4, Am. Tower Corp. v. Common
Council of City of Beckley, 210 W. Va. 345, 557 S.E.2d 752
(2001) (“It is well established that the word ‘shall,’ in the
absence of language in the statute showing a contrary intent on
the part of the Legislature, should be afforded a mandatory
connotation.” (citing Syl. Pt. 1, Nelson v. W. Va. Pub. Emps.
Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) and Syl. Pt. 1,
E.H. v. Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997))).

Id. at *4. Additionally, in W. Va. Dep’t of Hum. Serv. v. David B., et al, 251 W. Va. 217,

___, 911 S.E.2d 884, 895 (2024), the SCAWV recognized that

“[L]egislative rules in West Virginia are authorized by acts of
the Legislature and we have treated them, as they should be, as
statutory enactments.” Appalachian Power Co. v. State Tax
Dep’t, 195 W. Va. 573, 584, 466 S.E.2d 424, 435 (1995).
Hence, “[o]nce a disputed regulation is legislatively approved,
it has the force of a statute itself.” Id. at 585, 466 S.E.2d at 436;
see also Syl. Pt. 2, in part, W. Va. Health Care Cost Rev. Auth.
v. Boone Mem’l Hosp., 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.”); Penn Virginia Operating Co.,
LLC v. Yokum, 242 W. Va. 116, 120, 829 S.E.2d 747, 751
(2019) (“A legislative rule has the force of a statute[.]”);
Summers v. W. Va. Consol. Pub. Ret. Bd., 217 W. Va. 399, 405,
618 S.E.2d 408, 414 (2005) (per curiam) (“[L]egislative rules
have the force and effect of statutes[.]”); Feathers v. W. Va. Bd.
of Med., 211 W. Va. 96, 102, 562 S.E.2d 488, 494 (2001)

24
(“[W]hen regulations enacted by an agency have been
legislatively approved, they have the force of statutes and are
interpreted according to ordinary canons of statutory
interpretation.”); Men & Women Against Discrimination v.
Fam. Prot. Servs. Bd., 229 W. Va. 55, 60, 725 S.E.2d 756, 761
(2011) (per curiam) (“In considering the validity of legislative
rules . . . we give those rules the same weight as we would give
a statute.”).

Here, there is no dispute that PCAP and SCCOA, as affected persons,

requested a public hearing within the appropriate time frame. W. Va. Code R. § 65-32-8.11

is explicit and clear and does not give the hearing examiner any discretion in conducting a

public hearing, but, instead, mandates that a public hearing be held, if the request is timely

made. Accordingly, we find the Authority’s hearing examiner’s award of summary

judgment to Panhandle was clear error.26

At oral argument before this Court, Panhandle suggested that the Rules of

Civil Procedure have been incorporated in all Authority proceedings and, accordingly, a

26
The Authority argues that the hearing examiner’s authority to award summary
judgment is inherent in its power to resolve contested cases set forth in West Virginia Code
§ 29A-5-1(d)(3),(5),(6). While we acknowledge the arguments of the Authority in this
regard, we are mindful of the Authority’s further acknowledgement that “West Virginia
authorities have not explicitly examined whether agencies have summary judgment power
under the State’s APA.”

While the Authority cites instances in which federal authorities have recognized an
agency’s authority to grant summary judgment under the federal APA, we find that it is
unnecessary for this Court to examine the mechanism of awarding summary judgment in
CON cases before the Authority, as West Virginia statutory law provides the clear and
absolute right to a public hearing for affected persons who timely request the same. The
right to a public hearing for affected persons who timely request said hearing is clear and
must be applied by this Court.
25
motion for summary judgment was an appropriate action contemplated under those Rules.

However, a review of the applicable rules and regulations reveals that the West Virginia

Rules of Civil Procedure were only adopted with respect to discovery procedures. See W.

Va. Code R. § 65-32-8.25 (“The affected parties may engage in discovery as provided by

the West Virginia Rules of Civil Procedure.”). Thus, we find no merit in Panhandle’s

argument in this regard.

Accordingly, based on the foregoing, we reverse the hearing examiner’s

award of summary judgment to Panhandle, and remand these matters (24-ICA-98 and 24-

ICA-99) back to the Authority and direct that the hearing examiner enter an order

consistent with this opinion and provide PCAP and SCCOA their requested public hearing

on Panhandle’s CON applications.

Further, we note that even if the hearing examiner had discretion to award

summary judgment in the underlying cases, such an award was improper, as summary

judgment was awarded prior to the evidentiary public hearing, at which PCAP and SCCOA

would have had the opportunity to discover additional evidence in support of their

positions. “A motion for summary judgment should be granted only when it is clear that

there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable

to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co.

of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). The SCAWV has long recognized

that

26
[a]s a general rule, summary judgment is appropriate only after
adequate time for discovery. See [Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)]. A party opposing a motion for summary
judgment must have a reasonable “opportunity to discover
information that is essential to [its] opposition” to the motion.
See Anderson [v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5
(1986)].

Poweridge Unit Owners Ass’n v. Highland Props, Ltd., 196 W. Va. 693, 701, 474 S.E.2d

872, 881 (1996). In the instant cases, PCAP and SCCOA argued before the hearing

examiner that they had not yet “put on [their] cases,” as they anticipated collecting

supportive testimony and other evidence at the public hearing to further develop their

arguments in opposition to Panhandle’s CON applications. We agree with PCAP and

SCCOA and find that, under the limited facts and circumstances present in the underlying

cases, even if summary judgment were a permissible option for the hearing examiner, that

it was not proper. As our rulings on these two issues are dispositive of Petitioners’ claims

as to Panhandle, we decline to address the remaining assignments of error raised by

Petitioners in 24-ICA-98 and 24-ICA-99, as they are rendered moot by our rulings.

Cases 24-ICA-97, 24-ICA-100, 24-ICA-122, and 24-ICA-123

Facts and Procedural Background

On June 12, 2023, the Authority received individual CON applications from

STHC, Elder, and Southern seeking to provide PC Services in various named counties.

Thereafter, on June 26, 2023, the Authority received a CON application from Village

seeking to provide PC Services in specifically noted counties. On July 13, 2023, PCAP

wrote to the Authority, by separate letter for each of the underlying CON applications, to

27
object to each of Respondent Providers’ CON applications, to identify itself as an affected

person under West Virginia Code § 16-2D-2(1), and to request a public evidentiary hearing

in each case. Similarly, FCSP wrote to the Authority, by letters dated July 16, 2023 (in

STHC case) and July 17, 2023 (in Village and Elder cases), and made similar requests

seeking affected party status, requesting a public hearing and levying an objection to

STHC, Village, and Elder’s CON applications.27

The parties thereafter exchanged discovery and “relevant documents were

made part of the record.” On September 25, 2023, pretrial hearings were individually held

before the Authority’s hearing examiner in the STHC and Elder cases and a public

evidentiary hearing held on October 4, 2023 (in the Elder case) and October 5, 2023 (in the

STHC case). A pretrial conference was held before the hearing examiner in the Southern

case on October 19, 2023, and a public evidentiary hearing was held on October 25, 2023.

As to the Village case, a pretrial conference was held before the hearing examiner on

November 1, 2023, and a public evidentiary hearing was held on November 14, 2023. At

each of the public hearings, “testimony was entered into the record by both parties” and

each hearing was presided over by the Authority’s hearing examiner.

Thereafter, each of the Respondent Providers filed briefs in support of their

individual CON applications, to which Petitioners responded and objected. Respondents

27
FCSP is not a Petitioner in 24-ICA-123.
28
then filed reply briefs, again in support of their individual CON applications. Ultimately,

on February 7, 2024 (in 24-ICA-100) and February 21, 2024 (in the 24-ICA-97, 122, and

123), the Authority granted each of Respondent Providers’ CON applications, in individual

decisions. It is from the Authority’s decisions granting Respondent Providers’ CON

applications that Petitioners now appeal.

Discussion

On appeal, Petitioners raise five assignments of error, which we have

combined and reordered for purposes of efficiency. See generally Critchley, 229 W. Va.

396, 402, 729 S.E.2d 231, 237 (2012). In two of their assignments of error, Petitioners

argue that the 2023 PC Standards were arbitrary and capricious with respect to the need

methodology and caused the Authority to identify an unmet need in the proposed service

areas that did not actually exist. Further, Petitioners suggest that the Authority erred in

finding that Respondent Providers’ applications would not have a negative effect on the

community by significantly limiting the availability of other resources, such as nutrition

and transportation services. Next, Petitioners contend that the Authority showed clear bias

below, constituting an abuse of power. Lastly, Petitioners argue that the Authority erred in

granting Elder’s CON application, while it was “involved in pending litigation with the

State of West Virginia for Medicaid fraud.”

We begin with Petitioners’ arguments related to the alleged arbitrary and

capricious nature of the 2023 PC Standards promulgated by the Authority. Specifically,

29
Petitioners take issue with the Authority’s use of the 3% multiplier in the need

methodology calculation (in the 2023 PC Standards), as opposed to the 1.25% multiplier

(used in the 2016 PC Standards), and suggest that the 3% multiplier was decided based

upon pure conjecture, speculation, and an unfounded rumor that subcontracting of CONs

was going to be prohibited in the future. Conversely, Respondent Providers argue, and we

agree, that the 2023 PC Standards were not arbitrary and capricious and were properly

enacted via the processes and procedures outlined in West Virginia Code § 16-2D-6, citing

the testimony of Timothy Adkins, the Authority’s CON program director, regarding the

revised 2023 PC Standards, specifically the need methodology multiplier increase.28

28
As noted in the Authority’s Decision in 24-ICA-123, approving Respondent
Southern’s CON application, the Authority determined that the 2023 PC Standards,
including the revised need methodology, were “rationally based.” In support of its findings,
the Authority cited to the testimony of Timothy Adkins, who testified, during a public
hearing, that:

The 1.25 percent, initially when we wrote these standards in 2016, that was
to be 2.5 percent, and that was after the research that was done, they said, we
really think it may need to be 2.5 percent. However, just about the time that
happened and we [were] getting ready to present these for comment,
Medicaid went through a crisis. Well, there was something in the paper that
said that Medicaid was going to lose $40 million, and we had different ones
coming and calling us saying, we can’t do that. The 2.5 is too much. So that’s
where the 1.25 came from.

Further, Mr. Adkins, testified that

[I]nitially, it was going to be 2.5. We did not --- when we [were] getting ready
to submit these standards for public comment, there was an article back in
2016 that Medicaid was going to be under about $40 million. And the board
made a decision then, well, we’re not going to raise to 2.5, let’s do it to 1.25.
That’s how the 1.25 was developed.

30
West Virginia Code § 16-2D-6 addresses the procedures by which the PC

Standards can be amended by the Authority. Here, the record reflects that the Authority

followed the procedures outlined in § 16-2D-6 when amending the PC Standards in 2023,

and that said standards were, ultimately, approved and signed by West Virginia’s Governor

on April 27, 2023, well in advance of the underlying CON applications filed by Respondent

Providers herein.29 Accordingly, while PCAP and FCSP may not personally agree with the

2023 amendments to the PC Standards, as the Authority revised these PC Standards in

Mr. Adkins stated that he reviewed “enrollment numbers” from BMS and that two
percent of West Virginia’s Medicaid recipients were already receiving PC Services and,
accordingly, “the 2016 [PC S]tandards’ 1.25% multiplier needed to be raised to accurately
reflect the need for PC services.” Based upon this testimony, and the increased age in West
Virginia’s population since 2016 (increasing need for PC Services), the Authority found
that its “2016 research already indicated that the multiplier should be at 2.5% to accurately
reflect the need for PC Services, much closer to the current 3.0% than the previous 1.25%.”

Moreover, the Authority found nothing improper or “unsound” in its reliance on
BMS’ representations regarding its intent to eliminate subcontracting (via statements
BMS’ representatives made to Mr. Adkins in multiple telephone conferences).
Accordingly, the Authority found, and we agree, that it was not “irrational for the Authority
to consider BMS’ plans in developing its standards[,]” as such practice was specifically
contemplated by West Virginia § 16-2D-6(e), which provides that the Authority, in
revising its CON Standards “may consult with or rely upon . . . recommendations and
practices of other health planning agencies and organizations, . . . [and] recommendations
from third-party payors[.]”
29
We acknowledge an alleged factual dispute below about the Authority’s
convening of a “task force” with regard to the amendment of the 2023 PC Standards and
clarify that the record clearly reflects that a task force meeting to discuss the amendments
to the 2023 PC Standards was held by the Authority on September 29, 2022. In its appellate
briefs before this Court, PCAP admits that it had notice of and participated in the September
29, 2022, task force meeting. Further, we clarify that West Virginia Code § 16-2D-6 does
not specifically mandate or contemplate the holding of multiple meetings of task force(s),
or that said meetings must reach a certain time threshold to be considered as a task force
meeting, as suggested by PCAP on appeal.
31
compliance with the procedures outlined in West Virginia Code § 16-2D-6, we find no

error. The 2023 PC Standards were not created by the Authority within a vacuum, but were

the result of the collaborative process required by the Legislature and outlined in West

Virginia Code § 16-2D-6. This process included the Authority receiving input of those

providing PC Services in West Virginia. These providers suggested changes and

comments upon the proposed standards. The standards were ultimately approved by the

Governor.30 Accordingly, we find the Authority’s 2023 PC Standards were not arbitrary

and capricious and the Authority’s reliance upon them in the consideration of Respondent

Providers’ CON applications below was not clear error.

Further, we disagree with Petitioners’ argument that the Authority’s finding

that granting Respondent Providers’ CON applications would have no negative effect on

the community by significantly limiting the availability and viability of “other services” or

providers, was clearly wrong. Here, Petitioners suggest that granting Respondent

Providers’ CON applications would cause Petitioners to limit their nutritional and

transportation programs in the respective counties at issue. However, as the Authority

found in its Decision in 24-ICA-123, “transportation and nutrition services are not

regulated by CON law.” Moreover, as the Authority stated in the Southern Decision,

30
We note that the Authority’s decision in 24-ICA-123 reflects that “the Authority
not only received comments from task force members and the public [as to the proposed
2023 PC Standards (before they were presented to the Governor for approval)], it made
changes to the proposed standards based on these comments.”
32
“[b]ecause PCAP’s nutrition and transport programs are not ‘health services’ as defined by

West Virginia Code § 16-2D-2(18), they are not within the scope of the Authority’s

jurisdiction.”31

31
In its Southern Decision, the Authority further discounts PCAP’s arguments citing
the testimony of Timothy Adkins (program director of the Authority) during an October
13, 2023, hearing, which PCAP purports describes transportation and nutrition programs
as “other services” described in criteria two of the 2023 Proposed Standards need
methodology. PCAP makes similar arguments before this Court and contends that Mr.
Adkins testified that:

Q: [Attorney Walters]: . . . So read that, and tell me what you’re
referring to.

A: [Mr. Adkins]: Will the loss of revenue prevent other
services from being provided? We know
that --- that the providers use those dollars
for other services.

Q: [Attorney Walters]: And that’s, and obviously then it was
concern of yours?

A: [Mr. Adkins]: It --- it’s still a concern of mine.

Q: [Attorney Walters]: And we don’t have the transcript of it, but
when we were --- when you were in that
meeting, you were walking through the --
- the three elements for a CON
application. You talked about need, and
then when you got to the second element
and it’s in the standards you got there. On
page three, post services will not have a
negative effect on the community by
significantly limiting the availability and
viability of other services. You --- you
brought that up again, and I think your
specific comment was you don’t want to
be in a situation where you’re robbing
Peter to pay Paul?
33
Additionally, we agree, as was concluded by the Authority in its Decision in

Elder (24-ICA-122), there is simply no evidence that PCAP or FCSP would have to stop

“offering meals, or transportation, or any other services” based upon the approval of the

Respondent Providers’ CON applications. As the Authority noted in its Elder Decision,

PCAP’s “2022 financials clearly indicate that it has over $4,000,000 in cash which could

be used to provide transportation” and meal services. Moreover, we agree, as was argued

by Southern herein, the key concern for this Court and the Authority to consider “is whether

consumers will be able to access the PC Services they need [in each of the respective

A: [Mr. Adkins]: That’s exactly right.

Q: [Attorney Walters]: And you’re referring about the same
thing. Those --- those --- those fees that
they’re using provide the other services?

A: [Mr. Adkins]: Right.

Q: [Attorney Walters]: And --- and that applies to those other
services in number two?

A: [Mr. Adkins]: That’s exactly right.

Like the Authority below, we find that Mr. Adkins’s testimony cannot be read to
establish that nutrition and transportation services are “other services” to be considered
when determining the second criteria under the 2023 PC Standards. In an excerpt from that
same hearing, not cited by PCAP, Mr. Adkins clarified that he had no “power to make a
decision [regarding what constituted other services] and approve it without --- the
[Authority’s] Board has to be, the Board is the ultimate Authority.” Here, the Board, as the
ultimate authority, found that “other services” did not include the transportation and
nutrition services referenced by PCAP. This is further confirmed by the hearing examiner’s
Dismissal Orders in 24-ICA-98 and 24-ICA-99, in which the hearing examiner found that
the “. . . Authority [has] held that the ‘other services’ must be related to the services at issue
in the [CON a]pplication” and that the nutrition and transportation (“food delivery”)
services provided by PCAP were not such “other services.”
34
counties], not whether PCAP will be able to maintain its market share.” Accordingly,

based on the foregoing, we find no error related to this assignment of error.32

We next turn to Petitioners’ contention that they are entitled to appellate

relief as the Authority, through the actions of its hearing examiner, 33 showed bias in the

underlying proceedings constituting “a clear abuse of power.” Initially, we note that

Petitioners’ arguments regarding bias are completely devoid of any supporting legal

authority, a clear violation of Rule 10(c)(7) of the West Virginia Rules of Appellate

Procedure.

Moreover, the records herein reflect that despite multiples instances of what

Petitioners describe as “bias[,]” that Petitioners did not seek to recuse or disqualify the

Authority’s offending hearing examiner. Additionally, our thorough review of the

voluminous records of the underlying cases shows no bias. While Petitioners certainly

32
We decline to address the parties’ arguments regarding Chevron U.S.A, Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), as it is not necessary for
this Court to address the Authority’s “interpretation” of a statute, as the clear statutory law
in West Virginia provides the explicit manner in which the Authority is to review CON
applications and promulgate CON standards. With such clear statutory law, this Court has
not relied upon the Authority’s interpretation of any statute, thus rendering Chevron and
its progeny inapplicable.
33
The hearing examiner below has been noted, in other proceedings, as counsel of
record of the Authority (including a 2023 action in the Circuit Court of Kanawha County
challenging the 2023 PC Standards). That case, Putnam County Aging Program, Inc., v.
W. Va. Dep’t of Health and Human Services, Civil Action No. 23-C-775, was dismissed
by the Circuit Court of Kanawha County on September 19, 2023.
35
disagree with the rulings of the hearing examiner, such disagreement is not tantamount to

a “clear abuse of power.” Accordingly, we find no error.34

In their last assignment of error, Petitioners argue that the Authority erred by

granting Elder’s underlying CON application while Elder was involved in a pending

litigation with the State of West Virginia for Medicaid fraud (in the alleged amount of

$151,907.79). Again, Petitioners’ arguments on this issue are completely devoid of

reference to any legal authority in support of this position, in violation of Rule 10(c)(7) of

the West Virginia Rules of Appellate Procedure. Despite this failure, we find no error.

Here, the Authority’s hearing examiner would not permit Elder representatives to be

questioned during hearings in the CON application process regarding its pending fraud

case, citing that the same was irrelevant to its CON application. We agree with the hearing

examiner. Here, as the fraud case was still pending against Elder, the allegations against

Elder were irrelevant to the Authority’s consideration of Elder’s underlying CON

application, a wholly unrelated matter. As cited by the Authority, in State v. Cook, 81 W.

Va. 686, ___, 95 S.E. 792, 794 (1918), the SCAWV has long reasoned that allegations

standing alone “will not be considered as evidence . . . unless those allegations are made

34
We find it important to note the SCAWV’s long standing ruling in Syllabus Point
2 of Varney v. Hechler, 189 W. Va. 655, 434 S.E.2d 15 (1993) and West Virginia Code §
29A-5-1(d), which by their express terms “[permit] an administrative agency to designate
any member within the agency to preside as a hearing examiner and [requires] that such
hearing be conducted in an impartial manner. No inherent conflict of interest is created
simply because such agency member serves as a hearing examiner.”
36
out by affirmative evidence.” Accordingly, we find no clear error with regard to this

assignment of error.

Conclusion

For the foregoing reasons, we reverse the Authority’s award of summary

judgment to Panhandle in 24-ICA-98 and remand the case back to the Authority with

directions to reinstate the matter and conduct a public hearing, as required by W. Va. Code

R. § 65-32-8.11. As to 24-ICA-99, we affirm, in part, the Authority’s dismissal of FCSP

as an “affected party.” However, we reverse, in part, the Authority’s award of summary

judgment to Panhandle and remand the case back to the Authority with directions to

reinstate the matter and conduct a public hearing. As to 24-ICA-97, 100, 122, and 123, we

affirm the Authority’s approval of the CON Applications of STHC, Village, Elder, and

Southern at issue in the underlying cases.

Affirmed, in part, Reversed, in part, and Remanded with instructions.

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11070233. Public record. Not legal advice.