Hacker v. State Dept. of Health and Social Services

• Decision Date: 21 December 1995
• Docket Number: No. 93-1043,93-1043
• Citation: 541 N.W.2d 766,197 Wis.2d 441
• Parties: Kathleen HACKER, Petitioner-Appellant-Petitioner, v. STATE of Wisconsin DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent-Respondent.
• Court: Wisconsin Supreme Court

Page 766

541 N.W.2d 766

197 Wis.2d 441

Kathleen HACKER, Petitioner-Appellant-Petitioner, v. STATE of Wisconsin DEPARTMENT OF HEALTH AND SOCIAL SERVICES,

Respondent-Respondent.

No. 93-1043.

Supreme Court of Wisconsin.

Argued Oct. 3, 1995.

Decided Dec. 21, 1995.

For petitioner-appellant-petitioner there were briefs by Robert M. Hesslink, Jr., Natalie M. King and Hesslink Law Offices, S.C., Verona, and oral argument by Robert M. Hesslink.

For respondent-respondent the cause was argued by Gerald S. Wilcox, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

DAY, Chief Justice.

Petitioner Kathleen Hacker seeks review of a published decision of the court of appeals, Hacker v. DHSS, 189 Wis.2d 328, 525 N.W.2d 364 (Ct.App.1994), which affirmed an order of the Circuit Court for Dodge County, Joseph E. Schultz, Judge, affirming a decision of the Department of Health and Social Services (DHSS) authorizing revocation of Ms. Hacker's operating licenses for two community-based residential facilities (CBRFs). Ms. Hacker raises five issues on this review: (1) whether the court of appeals decision erred in interpreting Wis.Stat. § 50.01(1g) (1991-92) ¹ as not allowing for any nursing care to be provided at a CBRF; (2) whether DHSS violated Wis.Stat. § 50.03(5)(b) (1993-94) ² or Ms. Hacker's due process rights in failing to provide an adequate notice of revocation; (3) whether substantial evidence in the record supports the hearing examiner's factual findings of violations of chapter 50 of the Wisconsin Statutes and chapter HSS 3 of the Wisconsin Administrative Code, characterized by the examiner as substantial; (4) whether the hearing examiner erroneously concluded that nursing services may not be performed in a CBRF without a physician's written order, either direct or standing; and (5) whether DHSS's decision to revoke Ms. Hacker's licenses constituted an abuse of discretion. We reverse the decision of the court of appeals revoking Ms. Hacker's licenses and remand to DHSS for a determination of alternative sanctions. We also disagree with the conclusion of the court of appeals that no nursing services may be provided in a CBRF. However, we agree with the court of appeals that Ms. Hacker was provided sufficient notice and that substantial evidence in the record supports the hearing examiner's conclusion that Ms. Hacker substantially violated chapter 50 of the Wisconsin Statutes and chapter HSS 3 of the Wisconsin Administrative Code.

The underlying facts in this case are as follows; additional facts will be noted as necessary throughout this opinion. Kathleen Hacker, a registered nurse, is the licensee and manager of two CBRFs, the Harbor Inn facility in Horicon, Wisconsin, and the Shannon Home facility in Juneau, Wisconsin. On September 17, 1991, DHSS issued a notice of revocation for Ms. Hacker's licenses at Harbor Inn and Shannon Home. On September 23, 1991, Ms. Hacker made a request for an administrative hearing on the revocation. DHSS issued a second notice of revocation on October 30, 1991, ³ which modified some of the factual allegations made in its first notice of revocation, deleted one charge, and added another. In the second notice of revocation, DHSS charged Ms. Hacker with twenty-one code violations.

After hearings on December 6, 9, 10, and 12, 1991, a DHSS hearing examiner issued a written decision on February 10, 1992. The examiner found four violations of Wis.Stat. § 50.09(1)(e) & (L) (1993-94), ⁴ which it described under "Conclusions of Law" as follows:

1. The licensee [Ms. Hacker] has substantially violated § 50.09(1)(L), Wis.Stats., by directing a staff person to administer Milk of Magnesia to a resident of Shannon Home in a dosage which exceeds physician's orders.

2. The licensee has substantially violated § 50.09(1)(L), Wis.Stats., by performing rectal examinations, giving an enema, and removing a bowel impaction without a written order from the physicians for two residents, one at Harbor Inn and one at Shannon Home.

3. The licensee has substantially violated § 50.09(1)(L), Wis.Stats., by failing to inform the residents' physicians of the medical condition of the residents in conclusion of law 2.

4. The licensee has substantially violated § 50.09(1)(e), Wis.Stats., by yelling at [a resident] at Shannon Home and calling [the resident] names.

The hearing examiner found the other seventeen code violations DHSS alleged to be unsupported by the evidence. The hearing examiner ruled that DHSS could revoke the CBRF licenses of Shannon Home and Harbor Inn. On April 9, 1992, DHSS adopted the February 10, 1992 decision of the hearing examiner as its final decision.

Ms. Hacker sought judicial review of DHSS's decision. The Circuit Court for Dodge County, the Honorable Joseph E. Schultz, affirmed DHSS's order. Ms. Hacker appealed, and the court of appeals affirmed. The court of appeals held that Ms. Hacker had been in violation of Chapter 50 of the Wisconsin Statutes by providing nursing services at a CBRF; according to the court of appeals, the unambiguous language of § 50.01(1g) did not permit any nursing services to be performed at a CBRF. The court of appeals also held that DHSS's findings were supported by substantial evidence, and that the revocation of Ms. Hacker's CBRF licenses was an appropriate penalty.

We first consider whether the court of appeals erred in concluding that § 50.01(1g) forbids providing any nursing services at a CBRF. The interpretation of a statute presents a question of law which this court reviews de novo. Ball v. District No. 4 Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984). Our methodology in interpreting statutory language is stated in In re Termination of Parental Rights to SueAnn A.M., 176 Wis.2d 673, 678, 500 N.W.2d 649 (1993) (quoting In Interest of P.A.K., 119 Wis.2d 871, 878-79, 350 N.W.2d 677 (1984) (citations omitted)):

The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. In determining the legislative intent, first resort is to the language of the statute itself. If the meaning of the statute is clear on its face, this court will not look outside the statute in applying it. If the statutory language is ambiguous, this court attempts to ascertain the legislature's intent by the scope, history, context, subject matter and object of the statute. A statute is ambiguous if it is capable of being understood by reasonably well-informed persons in either two or more senses.

Wisconsin Stat. § 50.01(1g) provides in relevant part:

(1g) "Community-based residential facility" means a place where 3 or more unrelated adults reside in which care, treatment or services above the level of room and board but not including nursing care are provided to persons residing in the facility as a primary function of the facility....

Both Ms. Hacker and DHSS argue that the phrase "but not including nursing care" is modified by the phrase "as a primary function of the facility," with the result that the statute allows some amount of nursing care to be provided in a CBRF. This interpretation of the statute was shared by the hearing examiner in the instant case. DHSS and Ms. Hacker argue that the court of appeals' interpretation is contrary to the legislative intent of the statute, as well as DHSS's longstanding interpretation. The court of appeals read the statute as unambiguously forbidding nursing care in a CBRF. The court of appeals stated:

Section 50.01(1g) must be read as if commas were placed before and after the phrase "but not including nursing care." The phrase, "as a primary function of the facility," modifies the clause, "a place where five or more unrelated adults reside in which care, treatment or services above the level of room and board ... are provided." It does not modify the phrase, "but not including nursing care." The statute is unambiguous.

Hacker, 189 Wis.2d at 333-34, 525 N.W.2d 364.

We disagree with the court of appeals' determination that § 50.01(1g) is unambiguous. As the parties point out, it is difficult to perceive how a statute is unambiguous if one must change the statute's punctuation by adding commas in order to ascertain its meaning. We find that the statute is capable of two meanings, in that the phrase "but not including nursing care" may or may not be modified by the phrase "as a primary function of the facility." We therefore must ascertain the Legislature's intent in drafting § 50.01(1g) by examining the "scope, history, context, subject matter and object of the statute." SueAnn A.M., 176 Wis.2d at 678, 500 N.W.2d 649.

Section 3, ch. 413, Laws of 1975 first defined CBRFs. It provided:

"Community-based residential facility" means a place where 3 or more unrelated adults reside in which care, treatment or services above the level of room and board but less than skilled nursing care is provided to persons residing in the facility. Such care, treatment or services is provided as a primary function of such facility.

That definition was repealed and recreated by § 4, ch. 170, Laws of 1977, which provided new definitions under then-Wis.Stat. § 50.01:

(1) "Community-based residential facility" means a place where 3 or more unrelated adults reside in which care, treatment or services above the level of room and board but not including nursing care are provided to persons residing in the facility as a primary function of the facility. "Community-based residential facility" does not include a nursing home, except that the department may designate a category or categories of intermediate care facilities which serve fewer than 20 residents and which otherwise meet the definition of this subsection to be licensed and regulated as community-based residential facilities....

Section 4, Chapter 170, Laws of 1977 also provided the following definitions of "intermediate care facility" and "nursing home":

(2) "Intermediate care facility" means a facility...