Kaufman v. State Dept. of Social and Rehabilitative Services

• Decision Date: 24 May 1991
• Docket Number: No. 65607,65607
• Citation: 811 P.2d 876,248 Kan. 951
• Parties: , 33 Soc.Sec.Rep.Ser. 628 Arlan KAUFMAN, Ph.D., Appellant, v. STATE OF KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee.
• Court: Kansas Supreme Court

Page 876

811 P.2d 876

248 Kan. 951, 33 Soc.Sec.Rep.Ser. 628

Arlan KAUFMAN, Ph.D., Appellant, v. STATE OF KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION

SERVICES, Appellee.

No. 65607.

Supreme Court of Kansas.

May 24, 1991.

Syllabus by the Court

1. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the statute may be stricken down it must clearly appear that the statute violates the Constitution. In determining constitutionality, it is the court's duty to uphold the statute under attack rather than defeat it.

2. When determining whether a statute is unconstitutionally vague, greater leeway is to be afforded statutes regulating business than those proscribing criminal conduct.

3. Standards to guide an administrative agency in the application of a statute may be inferred from the statutory purpose. Less detailed standards and guidance to administrative agencies are required in order to facilitate the administration of laws in the areas of complex social and economic problems.

4. The scope of appellate review of an administrative agency's action is to determine if the district court reviewed the action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The party asserting invalidity of the action has the burden of proving the invalidity.

5. If an administrative agency action is constitutionally authorized by statute, it is presumed valid on review unless it is not supported by substantial competent evidence and is so wide of its mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary, or capricious and prejudices the parties.

Thomas D. Haney of Porter, Fairchild, Wachter & Haney, P.A., Topeka, argued the cause and was on the briefs, for appellant.

Robert R. Hiller, Jr. of the Dept. of Social and Rehabilitation Services, argued the cause and was on the brief, for appellee.

LOCKETT, Judge:

Arlan Kaufman, Ph.D., appeals the decision of the district court affirming the finding of the Department of Social and Rehabilitation Services (SRS) that two residences owned by Dr. Kaufman and his wife, Linda Kaufman, are residential care facilities and required to be licensed pursuant to K.S.A. 75-3307b(a)(5). Kaufman claims: (1) The premises are not facilities subject to licensing under K.S.A. 75-3307b, and (2) K.S.A. 75-3307b is unconstitutionally vague. Kaufman's appeal was transferred to the Supreme Court pursuant to K.S.A. 20-3018.

Arlan Kaufman and his wife, Linda, are the owners of two houses, collectively known as Kaufman House, in Newton, Kansas. Dr. Kaufman holds a masters degree in social science and a Ph.D. degree in social work. Mrs. Kaufman is a registered nurse licensed by the State of Kansas.

Kaufman House opened in 1976 as housing for college students. The houses were subsequently turned into residential treatment facilities for adults with short-term or chronic mental or emotional problems. Dr. Kaufman maintains that Kaufman House has not been a treatment facility for several years.

On December 4, 1986, SRS informed Dr. Kaufman that K.S.A. 75-3307b required his two houses to be licensed as a residential care facility (RCF). After several contacts, SRS sent Dr. Kaufman a letter, informing him that he needed to file an application for licensing the houses as residential care facilities by April 1, 1987. After receiving the letter, Dr. Kaufman met with Kent Munzer, program specialist with adult services of SRS. At that meeting, Munzer asked Kaufman to allow SRS employees to visit Kaufman House to determine if the houses should be certified as an RCF. During the inspection of the Kaufman Treatment Center, located in one of the houses, SRS employees observed a group therapy session being conducted by a licensed social worker.

Later, to obtain information about Dr. Kaufman and Kaufman House, a representative from SRS talked with Dr. Prost, a psychologist employed by Prairie View, Inc. Dr. Prost described Kaufman House as a residential care facility. In a subsequent letter, Dr. Prost stated she had little personal contact with Dr. Kaufman's program and had made her assumptions based on her knowledge of residents at Kaufman House, who previously had lived at Prairie View, Inc. In the letter, Dr. Prost informed SRS that, when she had earlier referred to Kaufman House as a residential care facility, she had no knowledge of SRS regulations and was not qualified to give an opinion as to whether Kaufman's facility should be licensed as a residential care facility.

SRS determined Kaufman House facilities should be licensed as an RCF. By letter SRS advised Kaufman that based on the following factors the residence required licensing:

"1. You and your wife have taken on the responsibility for assuring the clients' safety in the building.

"2. Your wife, a nurse, has assisted clients with taking of medication in the residences.

"3. You are aware of the clients' functioning and are ready to intervene in a crisis.

"4. You help clients make appointments and help transport them to the appointments.

"5. While you do not prepare meals, you do purchase the foods and are responsible for assuring their nutritional needs are met."

After Kaufman appealed SRS's decision, the matter was assigned to a hearing officer. At the hearing, Dr. Prost testified that she refers Prairie View, Inc., patients to Kaufman House based on Kaufman's ability to deal with chronically mentally ill patients. Dr. Prost acknowledged that due to the Kaufman House program, several of her patients are able to function outside the hospital. Dr. Prost indicated in March of 1988 she was aware of several chronically mentally ill individuals who were residing in Dr. Kaufman's facility. In order to live outside an institutional setting, these individuals require supervision. Dr. Prost testified that Mrs. Kaufman dispensed medication at Kaufman House and accompanied Kaufman House residents to their doctor's office at Prairie View, Inc., to receive their medication.

Dr. Kaufman provided affidavits from residents of Kaufman House which stated that neither staff members nor the Kaufmans prepare, serve, clean up after meals, or are present to supervise or oversee these activities. Dr. Kaufman testified that no staff member spends a majority of the member's time supervising the residents. Dr. Kaufman further testified that residents are free to come and go and an individual may reside in Kaufman House without receiving therapy at the Kaufman Treatment Center. Kaufman admitted that the residents of Kaufman House are provided the services of a registered nurse and a staff Ph.D. clinician.

Mrs. Kaufman testified that she does consider the residents to be her patients. Mrs. Kaufman admitted that she did administer medications to the residents of Kaufman House either by injection or by assisting individuals in taking oral medication. She denied transporting people to their medical appointments. As a courtesy, she had given rides to residents going her way. Mrs. Kaufman stated that the residents do their own grocery shopping and prepare their own meals. The grocery store sends bills for the food purchased by residents to Mrs. Kaufman and she pays the grocery bills. Mrs. Kaufman estimated she works about 20 hours a week as a nurse at Kaufman House.

After hearing the testimony and reviewing literature published by Kaufman and various agencies, the chief hearing officer determined that Kaufman House was required to be licensed as an RCF. The SRS Review Committee reviewed the record, adopted the facts found by the chief hearing officer, and affirmed the hearing officer. Dr. Kaufman petitioned for judicial review pursuant to K.S.A. 77-601 et seq.

Administrative boards and agencies may not rule on constitutional questions; therefore, the issue of the constitutionality of a state statute or an administrative regulation must be raised when the case is appealed to a court of law. In re Residency Application of Bybee, 236 Kan. 443, Syl. p 4, 691 P.2d 37 (1984). In his petition for judicial review, Kaufman claimed: (1) the SRS Review Committee's decision was not supported by substantial evidence; (2) Kaufman House does not provide RCF services; and (3) the statute requiring licensing of a residential care facility, K.S.A. 75-3307b, is unconstitutionally vague. The district court found K.S.A. 75-3307b is not unconstitutionally vague and there was substantial evidence to support SRS's findings that Kaufman House required licensing as a residential care facility.

The deaths of hundreds of elderly and disabled residents of substandard care and boarding homes alerted Congress that piecemeal legislation divided among the various state and local agencies provided little or no regulation of these homes. To establish federal enforcement and regulation of these homes, Congress enacted the Keys Amendment to the Social Security Act in 1977, now codified at 42 U.S.C. § 1382(e) (1988). In 1986, the Kansas Legislature amended K.S.A. 75-3307b to grant SRS authority to license residential care. The legislature's action was predicated upon the need for Kansas to comply with the Keys Amendment. The minutes of the House Committee on Public Health and Welfare, February 12, 1986, contain the following statement from the Secretary of SRS:

"This act is needed in order for the State to monitor the adequacy of the limited assistance these facilities provide and in order for the state to comply with Public Laws 94-566 and 97-35, commonly known as the Keys Amendment.

"The Keys Amendment requires every state to regulate all residential care-providing facilities where SSI recipients reside or are likely to reside. In late 1985, it became apparent that Kansas' current regulatory categories do not adequately cover the type of facility that is the focus of this act. There are estimated 17 such facilities in Kansas which serve from 5 to 39...