797 S.E.2d 543
W. Va.2017Background
- DVCC (Domestic Violence Counseling Center), a nonprofit providing counseling, applied for a behavioral health center license from OHFLAC after obtaining a Certificate of Need.
- OHFLAC denied licensure solely because DVCC’s counselor (the executive director, with an MS and counseling experience) was not licensed under West Virginia’s Licensed Professional Counselors statute (W.Va. Code § 30-31-1).
- DVCC argued it is exempt from the licensing requirement under W.Va. Code § 30-31-11(a)(4), which exempts counselors serving in public or private nonprofit corporations.
- OHFLAC relied on W.Va. Code R. § 64-11-5.5g (requiring professional staff to comply with applicable State professional licensure requirements) and interpreted it to require all counselors at behavioral health centers to be licensed.
- An administrative hearing recommended denial; the DHHR Secretary adopted that recommendation. The Kanawha County Circuit Court affirmed OHFLAC’s interpretation; DVCC appealed to the Supreme Court of Appeals of West Virginia.
- The Supreme Court reviewed de novo whether the administrative rule requires nonprofit-employed counselors to hold professional licenses and whether the agency’s interpretation conflicted with the statutory exemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether W.Va. Code R. § 64-11-5.5g requires all counselors at behavioral health centers to be licensed | The rule must be read according to its plain language; "applicable" licensure means only those licensure requirements that actually apply — nonprofit counselors are exempt under § 30-31-11(a)(4) | The rule is ambiguous and OHFLAC’s reasonable construction requires licensure for all counselors at behavioral health centers | Court held the rule’s plain meaning requires compliance only with applicable licensure; the nonprofit exemption applies, so OHFLAC erred |
| Whether OHFLAC’s interpretation is entitled to deference | Agency position contravenes clear statutory exemption and is not entitled to deference | Agency urges deference based on administrative expertise and regulatory objectives | Court refused deference because the rule and statute are unambiguous and agency relied on a novel litigation position |
| Whether the agency exceeded its authority by effectively rewriting the rule/statute | Statute controls; agency cannot modify a statute or clear rule by interpretation | Agency invoked general regulatory authority over licensed centers to justify broader requirement | Court held agency interpretation would conflict with statute and is impermissible |
| Whether procedural delay in issuing final administrative order violated due process | DVCC claimed delay caused prejudice (extra cost/time to renew CON) | DHHR argued no actual substantial prejudice shown | Court declined to grant relief on delay claim because DVCC did not prove actual and substantial prejudice |
Key Cases Cited
- Appalachian Power Co. v. State Tax Dep’t of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995) (statute and administrative rule interpretation reviewed de novo)
- CNG Transmission Corp. v. Craig, 211 W.Va. 170, 564 S.E.2d 167 (2002) (courts must reject administrative constructions contrary to clear statutory language)
- Tribeca Lending Corp. v. McCormick, 231 W.Va. 455, 745 S.E.2d 493 (2013) (clear statutory language must be applied without resort to interpretive tools)
- West Virginia Health Care Cost Review Authority v. Boone Mem’l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996) (a legislatively approved regulation has the force of statute and merits controlling weight)
- Consumer Advocate Div’n v. Public Service Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989) (an administrative rule or statute may not be modified under the guise of interpretation)