JAN-CARE AMBULANCE SVC. v. PSC OF W. VA., 26005.

• Citation: 206 W.Va. 183,522 S.E.2d 912
• Decision Date: 15 October 1999
• Docket Number: No. 26005.,26005.
• Court: Supreme Court of West Virginia
• Parties: JAN-CARE AMBULANCE SERVICE, INC., and West Virginia EMS Coalition, Appellants, v. The PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Interstate Medical Transport, Inc., and Sophia Volunteer Fire and Ambulance Service, Inc., Appellees.

522 S.E.2d 912

206 W.Va. 183

JAN-CARE AMBULANCE SERVICE, INC., and West Virginia EMS Coalition, Appellants, v. The PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Interstate Medical Transport, Inc., and Sophia Volunteer Fire and Ambulance Service, Inc., Appellees.

No. 26005.

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1999.

Decided October 15, 1999.

John Philip Melick, Jackson & Kelly PLLC, Charleston, West Virginia, Attorney for the Appellants.

Richard M. Allen, Charleston, West Virginia, Attorney for Appellee, The Public Service Commission of West Virginia.

Thomas N. Hanna, Charleston, West Virginia, Attorney for Appellee, Interstate Medical Transport.

James D. Kauffelt, Kauffelt & Kauffelt, Charleston, West Virginia, Attorney for Amicus Curiae, West Virginia Medical Facilities Transport Providers Association.

Stephen D. Annand, Roberta F. Green, David J. Mincer, Shuman, Annand, Bailey, Wyant & Earles, Charleston, West Virginia, Attorneys for Amicus Curiae, Kanawha County Emergency Ambulance Authority.

David Schles, Phillip M. Stowers, Charleston, West Virginia, Attorneys for Amicus Curiae, West Virginia Emergency Medical Services Advisory Council, A State Agency.

Darrell V. McGraw, Jr., Attorney General, Stephen J. Small, Asst. Attorney General, Charleston, West Virginia, Attorneys for Amicus Curiae, West Virginia Department of Health and Human Resources.

DAVIS, Justice:

Appellants Jan-Care Ambulance Service, Inc. (hereinafter "Jan-Care") and the West Virginia EMS Coalition (hereinafter "the Coalition") appeal two orders of the Public Service Commission (hereinafter "the PSC"), which granted certificates of convenience and necessity, pursuant to W. Va.Code § 24A-2-5 (1980) (Repl.Vol.1999), authorizing Appellee Interstate Medical Transport, Inc., and Appellee Sophia Volunteer Fire and Ambulance Service, Inc, to provide transportation for certain persons to and from health-care facilities. Jan-Care and the Coalition argue that such transportation constitutes emergency medical services that must be regulated by the Office of Emergency Medical Services as provided in W. Va.Code § 16-4C-1, et seq., the Emergency Medical Services Act of 1996. We find that the PSC has jurisdiction to authorize common carriers to provide transportation to and from health-care facilities within the statutory limits explained in the body of this opinion. However, the PSC exceeded that jurisdiction with regard to the cases underlying the instant appeal.

I. FACTUAL AND PROCEDURAL HISTORY

The particular facts pertaining to Appellee Interstate Medical Transport, Inc. (hereinafter "Interstate"), and Appellee Sophia Volunteer Fire and Ambulance Service, Inc. (hereinafter "Sophia"), are set forth separately below, beginning with Interstate.

A. Interstate

On January 5, 1998, Interstate submitted an application to the PSC requesting a certificate of convenience and necessity pursuant to W. Va.Code § 24A-2-5 (1980) (Repl.Vol. 1999). After some initial processing, the PSC interpreted the application as requesting that Interstate be authorized to

operate as a common carrier by motor vehicle in the transportation of patients in specialized limousine service to and from physicians' offices, hospitals and other health-care facilities between points and places in Fayette and Raleigh Counties, on the one hand, and points and places in West Virginia, on the other hand.

Interstate concurred with the PSC's interpretation of Interstate's application. The PSC referred the matter to the Division of Administrative Law Judges for a decision. Thereafter, various procedural orders were issued by the Administrative Law Judge (hereinafter "ALJ") assigned to the case. These orders, in part, directed Interstate to publish notice of its application and scheduled a hearing on the application for June 3, 1998.

In response to Interstate's published notice, protests opposing the application were filed by Clarence R. Cottle, Beckley Limousine Service and Checker Cab Company. Thereafter, Interstate amended its application to exclude trips that would both begin and end within either Raleigh or Fayette County.¹ In response to the amended application, all three protests were withdrawn and the hearing scheduled for June 3, 1998, was canceled by a procedural order issued by the ALJ on June 2, 1998.²

Also on June 2, nearly two months after the close of the protest period, Jan-Care and the Coalition filed a petition to intervene in this matter. In their petition, Jan-Care and the Coalition challenged the PSC's jurisdiction to grant authority to transport "patients." Jan-Care and the Coalition argued that because they raised primarily jurisdictional issues, their late-filed petition should be granted and a hearing scheduled. By recommended decision entered June 10, 1998, the ALJ opined that the motion to intervene should be denied as untimely. However, the ALJ recommended that Interstate's application be granted with an amendment intended to address the concerns of Jan-Care and the Coalition. Specifically, the ALJ suggested the word "patient" be changed to "passenger." Thus, the recommended decision granted Interstate the authority to

operate as a common carrier by motor vehicle in the transportation of passengers in specialized limousine service to and from physicians' offices, hospitals and other health-care facilities between points and places in Fayette and Raleigh Counties, on the one hand, and points and places in West Virginia, on the other hand, excluding, however, all trips that would both begin and end within either of the aforesaid counties.

(Emphasis added).

The PSC staff then filed a motion to intervene arguing that the ALJ erred by substituting the broader word "passengers" for the more narrow term "patients" in describing the authority granted to Interstate. Noting that the published version of the application requested authority to transport "patients," the PSC staff contended that "[s]ome carriers that might have protested an application to transport `passengers' might not have protested an application to transport `patients' only." Jan-Care and the Coalition also filed exceptions to the recommended decision, primarily asserting their previously expressed jurisdictional challenge.

By order entered September 22, 1998, the PSC granted the exceptions filed in response to the ALJ's recommended decision, granted the request of Jan-Care and the Coalition to intervene,³ and remanded the case to the Division of Administrative Law Judges for further processing. In compliance with this order, the Chief ALJ conducted a hearing and received evidence from Interstate and from Jan-Care and the Coalition. Following the hearing, the Chief ALJ issued a detailed thirty-one page recommended decision. In that decision, the Chief ALJ first concluded that the PSC did have jurisdiction to grant the authority requested by Interstate. In this regard, the Chief ALJ noted that, notwithstanding the use of the word "patient" in connection with Interstate's request for a certificate of convenience and necessity, "the service proposed to be provided by [Interstate] is simply a specialized limousine service, much the same as the Commission has authorized for the transportation of railroad crews and other groups who require more regularly scheduled transportation than a taxi service might be able or willing to provide." The Chief ALJ further observed that:

[Interstate] schedules a transport upon being notified by a client of a doctor's appointment, an appointment for a dialysis treatment or a need to be transported to any other type of medical facility and, if the client is able to get in and out of [Interstate's] van on his or her own power and requires no medical treatment in route, [Interstate] provides the requested service. The [Interstate] van is not equipped with any medical equipment beyond a basic first aid kit[,] and there is no evidence in the record to indicate that [Interstate] has ever represented to any passenger or medical facility that it either has the capability or is willing to provide any sort of medical treatment to any of its clients.

Having found that the PSC had jurisdiction to grant Interstate the requested authority, the Chief ALJ proceeded to address and reject specific challenges to the grant of authority that had been raised by Jan-Care and the Coalition. Consequently, the Chief ALJ granted the certificate of convenience and necessity to Interstate authorizing it

[t]o operate as a common carrier by motor vehicle in the transportation of patients in specialized limousine service to and from physicians' offices, hospitals and other health-care facilities between points and places in Fayette and Raleigh Counties, on the one hand, and points and places in West Virginia, on the other hand, excluding, however, all trips that would both begin and end within either of the aforesaid counties.

Jan-Care and the Coalition filed exceptions to this recommended decision raising the same basic arguments they had pursued before the Chief ALJ. Thereafter, by order entered February 3, 1999, the PSC denied the exceptions and adopted the Chief ALJ's recommended decision as its final order.

B. Sophia

The relevant facts relating to the application of Sophia are less involved. Sophia filed its application for a certificate of convenience and necessity on June 5, 1998. After initial processing and information gathering, the PSC interpreted the application as requesting that Sophia be authorized

to operate as a common carrier by motor vehicle in the transportation of passengers to and from the offices of physicians and other health care providers, between points and places in Raleigh County, on the one hand, and points and places in West Virginia, on the other hand.

Sophia concurred with the above language and was directed to publish notice of its application. The notice specified that all objections to the application must be tendered to...