Prot. & Advocacy for People with Disabilities, Inc. v. Buscemi

• Decision Date: 08 June 2016
• Docket Number: Opinion No. 5410,Appellate Case No. 2015–000109
• Parties: Protection and Advocacy for People with Disabilities, Inc., Appellant, v. Beverly A. H. Buscemi, Ph.D., in her official capacity as State Director, South Carolina Department of Disabilities and Special Needs and The South Carolina Department of Disabilities and Special Needs, and Kelly Hanson Floyd, Nancy Banov, W. Robert Harrell, Rick Huntress, Deborah McPherson and Dr. Otis Speight in their Official Capacities as Members of the Department of Disabilities and Special Needs Commission, Respondents.
• Court: South Carolina Court of Appeals

417 S.C. 267
789 S.E.2d 756

Protection and Advocacy for People with Disabilities, Inc., Appellant,
v.
Beverly A. H. Buscemi, Ph.D., in her official capacity as State Director, South Carolina Department of Disabilities and Special Needs and The South Carolina Department of Disabilities and Special Needs, and Kelly Hanson Floyd, Nancy Banov, W. Robert Harrell, Rick Huntress, Deborah McPherson and Dr. Otis Speight in their Official Capacities as Members of the Department of Disabilities and Special Needs Commission, Respondents.

Appellate Case No. 2015–000109
Opinion No. 5410

Court of Appeals of South Carolina.

Heard April 19, 2016
Filed June 8, 2016
Rehearing Denied August 22, 2016

Anna Maria Darwin, of Protection & Advocacy for People with Disabilities, Inc., of Greenville; Thornwell Simons, of Protection & Advocacy for People with Disabilities, Inc., of Columbia; Reid T. Sherard and David Curry Dill, both of Nelson Mullins Riley & Scarborough, LLP, of Greenville; and Phillips Lancaster McWilliams, of Nelson Mullins Riley & Scarborough, LLP, of Columbia; for Appellant.

William H. Davidson, II and Kenneth P. Woodington, both of Davidson & Lindemann, PA, of Columbia, for Respondents.

HUFF, A.C.J.:

417 S.C. 268

Protection and Advocacy for People with Disabilities, Inc. (P&A) brought this declaratory judgment action against the Department of Disabilities and Special Needs, as well as the Department's Director, Beverly A. Buscemi, Ph.D., and members of the Department's Commission (collectively, DDSN) seeking an order requiring DDSN to allow P&A access to

417 S.C. 269

medical information and records, including Medication Administration Records (MARs), of residents of Community Training Home (CTH) facilities housing developmentally disabled persons. From an order of the trial court dismissing the action, P&A appeals, asserting the trial court erred in (1) not giving effect to the statutorily authorized review of “plans of care” during Team Advocacy inspections, (2) interpreting S.C. Code Ann. § 43–33–350 to prevent P&A from conducting proper inspections as required by statute, (3) refusing to afford deference to P&A's interpretation of the term “plans of care,” and (4) ignoring South Carolina public policy in preventing P&A from inspecting documents to protect the State's most vulnerable citizens. Upon examination of the relevant statutes, we find it is the clear intent of the General Assembly not to permit P&A to review individual medical records in the course of unannounced inspections of the living conditions of the residential facilities and, therefore, affirm the trial court.

FACTUAL/PROCEDURAL BACKGROUND

P&A is a private, nonprofit corporation designated as South Carolina's protection and advocacy system for people with disabilities. As such, the General Assembly has provided P&A with certain powers and duties. S.C. Code Ann. § 43–33–310 to–400. At issue in this matter is P&A's authority to review personal medical records—particularly MARs—of CTH residents during P&A's statutorily authorized inspections of CTHs. In particular, the question presented is whether P&A's review of “plans of care” during an inspection, as provided in section 43–33–350(4) of the South Carolina Code, includes the personal medical records of CTH residents.

789 S.E.2d 758

As part of its function, P&A conducts team advocacy inspections of facilities housing individuals with disabilities. Initially, P&A focused its efforts on Community Residential Care Facilities (CRCFs), which are licensed by the South Carolina Department of Health and Environmental Control (SCDHEC). However, it decided it needed to expand its team advocacy inspections into CTHs, which are licensed and operated by DDSN. P&A sent DDSN notice of such in November 2007.

417 S.C. 270

In 2009, P&A was ready to start inspecting CTHs and sent DDSN a letter on June 11, 2009, stating its intention to begin unannounced visits to CTH IIs.¹ In its unannounced inspections of CRCFs, P&A had not been prevented from reviewing medical records.² In an August 12, 2009 letter to P&A, DDSN stated it supported the efforts of P&A to review living conditions; however, it further stated it did not agree team advocacy inspections of living conditions could involve the review of medical records. P&A sought to look at documents in CTHs concerning medical care in general, as well as MARS,³ in part to ensure the residents were properly provided services involving food and medicine and were protected from neglectful situations. DDSN and P&A disagreed over the interpretation of the term “plans of care” as set forth in section 43–33–350(4) of the South Carolina Code, and DDSN informed its contracted providers of its position that CTH II staff were to release only the residential treatment/support plan of a resident—which it considered the same as the plan of care—to the Team Advocacy coordinator. Thereafter, team advocates inspecting CTHs were informed they could not view medical records. P&A brought this action, seeking an order requiring DDSN to allow it access to CTH residents' medical records during inspections, including but not limited to MARs. P&A maintained it had the authority to view medical records of CTH residents during inspections, whether or not the residents or their legal guardians consented to such. It argued, under the

417 S.C. 271

statutory provision allowing it to review living conditions of these homes, including “plans of care,” it had the right during its inspections to review the residents' medical records, in particular MARs. DDSN, on the other hand, contended the statutes do not allow P&A to view medical records of the residents during inspections, asserting that MARs and other medical records are records and not plans, the General Assembly has excluded the review of residents' private medical records during inspections, and the inability to review medical records has not stripped P&A of its ability to inspect living conditions.

The trial court, sitting without a jury, concluded P&A does not have authority to review the medical records of CTH residents during its statutorily authorized inspections of living conditions in the homes and dismissed P&A's action with prejudice. This appeal followed.

STANDARD OF REVIEW

A suit for declaratory judgment is neither legal nor equitable, and the standard of review for such action is determined by the nature of the underlying issue. Bundy v. Shirley , 412 S.C. 292, 301, 772 S.E.2d 163, 168 (2015). “Interpretation of a legislative enactment is a question of law.” Edwards v. State Law Enf't Div. , 395 S.C. 571, 575, 720 S.E.2d 462, 464 (2011). “In a case raising a novel question of law, [the appellate court] is free to decide the question with no particular

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deference to the lower court.” Id. ; see also Sloan v. Greenville Hosp. Sys. , 388 S.C. 152, 157, 694 S.E.2d 532, 534–35 (2010) (providing statutory interpretation is a question of law for the court, which the appellate court may decide without deference to the trial court).

LAW/ANALYSIS

Pursuant to section 43–33–310, P&A was permanently established as an eleemosynary corporation to exercise protection and advocacy functions for the developmentally disabled and all other handicapped citizens of South Carolina. S.C. Code Ann. § 43–33–310 (2015). An overview of sections 43–33–310 to–400 reveals the powers and duties of P&A as authorized by the General Assembly, including the circumstances

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under and manner in which P&A is allowed to carry out those duties. In particular, section 43–33–350 sets forth the powers and duties of P&A, which include in pertinent part as follows:

(1) It shall protect and advocate for the rights of all developmentally disabled persons ... and for the rights of other handicapped persons by pursuing

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