In re Rumsey

• Decision Date: 31 August 2012
• Docket Number: No. 11–356.,11–356.
• Citation: 2012 VT 74,59 A.3d 730
• Court: Vermont Supreme Court
• Parties: In re Appeal of Charlotte RUMSEY.

59 A.3d 730

2012 VT 74

In re Appeal of Charlotte RUMSEY.

No. 11–356.

Supreme Court of Vermont.

Aug. 31, 2012.

William R. Dysart, Vermont Legal Aid, Inc., Burlington, for Petitioner–Appellant.

William H. Sorrell, Attorney General, Montpelier, and Christina Byrom, Assistant Attorney General, Waterbury, for Respondent–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

DOOLEY, J.

¶ 1. Petitioner Charlotte Rumsey appeals from a decision of the Vermont Human Services Board denying her Choices for Care (CFC) Services on a tie vote of the Board. The issue before the Board was whether petitioner met the eligibility requirements for either highest need or high need services. We hold that the Board decision fails to meet the requirements of the authorizing statute and was not a decision under 1 V.S.A. § 172. Accordingly, we reverse and remand.

¶ 2. Petitioner was seventy-four years of age at the time of the Board's evidentiary hearing and lives alone. She suffers from chronic seizure disorder, osteoarthritis of the knees and ankles, cerebral vascular disease, depression, anxiety, and obesity. She applied for CFC benefits to obtain home-delivered services to allow her to remain safely in her home. To avoid being placed on a waiting list, she must meet eligibility requirements for highest need or high need services.

¶ 3. The Vermont Department of Aging and Independent Living (DAIL) processed petitioner's application first by sending a Long Term Clinical Care Coordinator to meet petitioner in her home and evaluate her circumstances. This interview lasts between one and two hours. In petitioner's case, the Coordinator found that petitioner needed supervision for toilet use, mobility in bed, bathing, dressing, mobility, and personal hygiene. The Coordinator found that petitioner needed no assistance with meal preparation, because meals were supplied by Meals on Wheels, or with medication management, because others already provided that assistance. The Coordinator found that petitioner did not meet the eligibility requirements for highest need or high need services and that conclusion became the decision of DAIL. From that decision, petitioner appealed to the Board.

¶ 4. The Board acts first through a hearing officer. See 3 V.S.A. § 3091(b) (stating that the hearing “shall be conducted by the board or by a hearing officer appointed by the board”); Vermont Human Services Board, Fair Hearing Rules § 1000.3(A), 4 Code of Vt. Rules 13 020 002–1 [hereinafter Rules]. Evidence is presented to the hearing officer. Rules § 1000.3(0). Proceedings related to the presentation of evidence and rulings on procedural matters are recorded. Id. § 1000.3(P). The record for the decision is “[t]he evidence presented, both oral and written, and any oral or written arguments submitted in a timely manner.” Id. Based on that record, the hearing officer must make “findings, a recommended order, and a statement of reasons in support of that order.” Id. § 1000.3(R).

¶ 5. The Board's responsibility with respect to findings is controlled by statute, 3 V.S.A. § 3091(c). Under the statute, either the hearing officer or the Board must issue findings of fact. Id. If the hearing is conducted by the hearing officer, the findings must be reported to the Board, and the Board must approve them as its own findings “unless good cause is shown for disapproving them.” Id. The Board must “enter its order based on the findings.” Id.

¶ 6. In this case, petitioner's appeal proceeded as specified in the Rules. The evidentiary hearing was held before a hearing officer on June 30, 2011. The witnesses were petitioner, her case manager from the Champlain Valley Area Agency on Aging, the case manager's supervisor, petitioner's treating physician (via telephone), a friend, and the DAIL Long Term Clinical Care Coordinator. The hearing officer issued her proposed findings of fact, a recommended decision to affirm the DAIL denial, and a statement of reasons on July 22, 2011. The Board met to consider this and other cases on August 3, 2011, with six of seven members present. After hearing argument, the six members tied on whether to accept the hearing officer's recommendation. The Board did unanimously accept the hearing officer's findings of fact. It decided that in the case of a tie vote, the “Department's original decision stands.”

¶ 7. Following the Board decision, petitioner moved to reopen the case, seeking a Board decision based on the vote of all seven members. Petitioner also argued that the decision did not contain findings on the elements of the CFC eligibility standards. DAIL opposed the motion. The Board denied the motion. It concludedthat the findings were complete. In response to petitioner's request for a vote by all seven members, the Board stated that, if the case were reopened, there would be no guarantee “that all seven members would be present.” The Board noted that it was following the rule of courts for instances where there is a tie vote and that reopening would only delay an authoritative decision from this Court on the meaning of the CFC regulations.

¶ 8. On appeal, both parties argue that we should reach the merits of the case, albeit each desiring a different result. In the alternative, petitioner seeks a remand for proper findings and to have all seven of the Board members decide the case. DAIL opposes the alternative and suggests that we instead declare the meaning of the regulations and remand for the Board to find the relevant facts and render a decision.

¶ 9. The major impediment to reaching the merits of this appeal, assuming that we would otherwise do so, is the state of the factual findings. Almost without exception, the findings of fact section of the Board decision contains only recitations of testimony with no findings of the hearing officer based on this testimony. For example, petitioner's treating physician gave strong testimony in support of petitioner's position relating her functional limitations and the risks of seizure to the standards in the CFC regulations. The Board's “findings” recite the evidence and make no independent findings based on that testimony. The same is true of the testimony of the case manager from the area aging agency and her supervisor. The same is true of almost all the testimony of the friend, who visits petitioner regularly and observes her functionality.

¶ 10. The hearing officer understood the significance of the testimony of petitioner's witnesses. The findings state: “As will be spelled out below, petitioner minimizes the difficulties she has caring for herself ... [and therefore the Coordinator's] reliance on petitioner for information leads to information that does not provide a complete picture for an assessment.” Unfortunately, what is “spelled out below” is pages of recitation of testimony with no findings of the hearing officer. In short, nothing was spelled out below.

¶ 11. At least since 1967, when we decided the case of Krupp v. Krupp, 126 Vt. 511, 514–15, 236 A.2d 653, 655–56 (1967), we have consistently held that recitations of evidence are not findings of fact and cannot be considered so. In the words of Krupp, they are “immaterial and are not for consideration.” Id. at 515, 236 A.2d at 656. We have come to call such recitations Krupp findings.

¶ 12. In two recent decisions, we applied Krupp to the Human Services Board. In In re M.G., 2010 VT 101, ¶ 14, 189 Vt. 72, 13 A.3d 1084, we reversed a Board decision because it was based on Krupp findings. We held explicitly that Krupp findings do not comply with the statutory obligation of the Board and the hearing officer to make findings of fact pursuant to 3 V.S.A. § 3091(c). Id. In In re E.C., 2010 VT 50, ¶ 15, 188 Vt. 546, 1 A.3d 1007 (mem.), we also identified key factual recitations as Krupp findings, but were able to affirm the Board's decision because we could rely upon true factual findings that were mislabeled as reasons. See also Harrington v. Dep't of Emp't Sec., 142 Vt. 340, 346, 455 A.2d 333, 337 (1982) (noting that findings can be found in section of decisions labeled as conclusions). In this case, however, there is no statement of reasons or conclusions because of the Board's tie vote. Other than the mandate, the only text in the decision is the part labeled as findings of fact.

¶ 13. Petitioner argues that the Board also violated its duty to make findings of fact because it did not make findings on the key elements of the highest need and high need designations. For example, petitioner argues that she is eligible for highest need designation because she is an individual who “has a critical need for long-term care services due to special circumstances that may adversely affect the individual's safety.” Choices for Care, 1115 Long–Term Care Medicaid Waiver Regulations § II(II)(A)(5), 4 Code of Vt. Rules 13 110 008.¹ Special circumstances are defined to include when “[t]he individual's health and welfare shall be at imminent risk if services are not provided.” Id. § II(II)(A)(5)(c). Petitioner argues that the Board should have made findings on whether petitioner has a critical need for long-term care services, whether the need may affect petitioner's safety, and whether special circumstances exist. DAIL answers that these are conclusions of law that could not be reached because of the tie vote.

¶ 14. Whether labeled as findings of fact, conclusions of law, or mixed conclusions of fact and law, these are exactly the determinations that cannot be reached if the underlying findings are actually Krupp findings. As we stated in In re Hale Mountain Fish & Game Club, Inc., 2007 VT 102, ¶¶ 9–10, 182 Vt. 606, 939 A.2d 498 (mem.), we cannot review fact-based conclusions without the necessary underlying findings of fact. For this reason, we reverse and remand for proper findings.

¶ 15. Petitioner also urges reversal because the tie vote meant that the Board failed to render a decision as required by law...