*1 Leaks, issue, than controls this as the facts and the Hill argument were identical to the one here. nearly presented Consequently, we are conclude unable to that the trial court erred in allowing State to make statement this to the jury.
Affirmed.
Imber, J., participating. HOME, CITY v.
CAVE
NURSING
INC.
ARKANSAS DEPARTMENT OF HUMAN SERVICES
01-826
Supreme delivered November Opinion denied rehearing January [Petition 2003.*] [*] Thornton, J., would grant. (See supplemental dissenting opinion.) *3 P.L.L.C.,
Mitchell, Williams, & Gates Woodyard, by: Selig, Andreoli, and Elizabeth Debby Nye appellant. Thetford David S. Long, appellee. Corbin, L. This is an from an appeal Justice.
Donald decision Cave ordering Appellant City Nursing Home to monies it received under the Enhancement repay Wage administered (“WEP”) Arkansas Program by Appellee Depart- reversal, ment of Human For Services. Appellant argues violated the of the Arkansas Administrative Appellee provisions *4 Act Procedures codified at Ark. Code Ann. 25-15- (“APA”), §§ 201 to -214 in that its exceeded the 1999), decision (Supp. scope of its and and not statutory authority, arbitrary capricious, substantial evidence. This case was certified to us as by supported one an issue of first and involving impression statutory interpreta- tion; hence, our is to Ark. Ct. R. 1- jurisdiction pursuant Sup. and We find no error and affirm. 2(b)(1) (6).
This case centers on a over the correct dispute interpretation 1999, the WEP. In the Arkansas Gen- legislation creating 1537, eral which was the bill Assembly passed appropriations This act serves as the for the DHS. also enabling legislation WEP. 127 Act 1537 contains Section of special language provid- in ing part: Due enhanced recruit-
a) staffing, need for improved retention, ment and and of direct care person- improved quality nel, (DHS) of Human Services of Department —Division (DMS) Medical Services shall a facility specific wage implement 1, enhancement facilitieseffective 1999. program nursing July The shall be to program’s top priority staff, increase the number of direct care Certified specifically residents, (CNAs), Nurse Assistants serving nursing facility shall be utilized to meet the minimum staffing requirements which are effect rule and are recorded in Medicaid Term Care Provider Manual for the last of each Long day previ- ous quarter.
The of this was to the number increase purpose legislation direct care staff in the state’s homes the facili- nursing by providing ties with extra for the recruitment and retention of direct funding care staff. It is that “direct care staff” cer- undisputed encompasses tified assistants as are the nursing (“CNAs”), they employees pri- for the direct care of home marily responsible nursing patients. however, also that facilities legislation provided, would be to a forfeiture of funds them WEP if subject paid they failed to meet the minimum as set forth in Term Care Manual The issue of what those Long (“Manual”). “minimum are and to whom led staffing requirements” they apply to the case. dispute present the first of the fiscal
During quarter year, beginning July twelve occurrences of experienced staffing with to their staff The shortages regards registered nursing parties there were no shortages stipulated regard however, or Due CNAs LPNs. to the RN shortage, Appellee $28,269 notified were they seeking recoupment under the WEP for the 1999. paid quarter July September 1— decision, that the minimum staff- Appellant appealed averring under the referred WEP ing requirements required only CNAs, for the and not licensed personnel, such as RNs.
After DHS a officer to the mat- appointed hearing adjudicate ter, a was held on 2000. of both hearing May By agreement 28, 2000, held taken from a on parties, testimony hearing April 18 included in the into the record and transcript
was incorporated Helms, included the of Randy the matter. This testimony present he He testified that Administrator DMS. Chief Program the He as the administrator of WEP. serves explained the are contained in the Manual. Accord- for WEP Helms, to have the staff to the failure of an institution required ing resulted in a from DHS for month request any quarter enhancement for the entire the reporting facility repay Presi- at the was Also testifying April hearing Cooper, Jim He tes- dent the Arkansas Health Care Association (“AHCA”). of the AHCA he tified that as President participated of the WEP session. Accord- during legislative development Act 1537 tied to Act which for to provided ing Cooper, for facilities.1 He new minimum not conceded that Act 1529 addressed only staffing requirements maintained, however, CNAs, but also for RNs and LPNs. He did for all of staff that WEP not funding categories provide in Act to the WEP was to identified 1529. According Cooper, CNAs, because there was not enough money apply specifically raises for other further testified categories. Cooper implement on cross-examination that a was achieved compromise during that would allow DHS to funds for an legislative process recoup entire quarter. and at the was Annetta
Present testifying May hearing Home. She Administrator Cave City Nursing Maupin, a their that the RN occurred as result of shortages explained that her staff Director of Nurses She testified suddenly quitting. WEP, assumed that CNAs were the basis for and if had they could cause them to forfeit the known that RN shortage WEP, monies under the would have they paid paid fill the she was una- According position. Maupin, to be calculated for ware that RNs LPNs were going purposes of the WEP. did take effect until 2000. Act 1529 July *6 advisement,
After the matter under the officer taking hearing determined that DHS followed the of the APA in procedures the WEP. The officer stated that it was implementing hearing clear from the of section 127 the of the language top priority WEP was to additional funds for direct care staff. The provide however, officer assertion that hearing disagreed, Appellant’s the CNAs” meant that CNAs were to language “specifically only considered, be stating:
If there ais there are also other “top priority”, Had priorities. intended that be the Legislature only CNAs subject WEP, the would have reflected that the “only priority” CNAs, was or that the was to to CNAs. It program apply only used, did not. The word was “specifically” words or “solely” “exclusively”.
The officer further noted that Act 1537 could not hearing be isolation, considered in but rather had to be considered in light Act which set out to ratios of both improve licensed and unlicenced The officer also personnel. hearing out that because the of Act 1537 was to pointed purpose improve facilities, and increase direct care in it was not patient nursing unreasonable to those facilities to meet certain minimum require concluded, officer staffing requirements. hearing ultimately however, that the enacted exceeded DHS-DMS regulations for a scope legislative authority by imposing penalties failure to meet the for licensed facility’s nursing per- sonnel, when Act envisioned to direct care staff. application
DHS reviewed officer’s recommendation and hearing it with modifications. It determined that the accepted hearing officer’s conclusion that the and of minimum adoption application standards with to licensed was outside respect personnel 1537 was in conflict with the scope directly hearing officer’s conclusion that the intended all WEP was to cover direct Manual, Thus, care staff as set out in the RNs. DHS’s including final order found that had failed meet the minimum in because of the RN place shortage, $28,269 thereby required repay 30, 1999, monies paid July September 1— then this final decision to the appealed *7 6, Pulaski Circuit Court. A was held on March County hearing 2001, and each side the merits of their No fur- argued position. 28, 2001, ther was taken. An order entered on March testimony affirmed the DHS’s decision that Appellant required repay enhancement This order refer- wage money. incorporated by 13, 2001, Therein, ence a March letter order from the court. circuit held court that Act 1537 tied the consistently wage condition that the facilities meet payments the minimum minimum staffing requirements, require- ments for The circuit court further ruled CNAs. that the act was clear that forfeiture enhancement was to be on a quite basis. This followed. quarterly appeal
It is well settled that this court’s review limited in
is
and directed
is
not to the decision of the circuit court
but
scope
of the
decision
administrative
Arkansas
Bail
agency.
Prof’l
Oudin,
48,
Lic. Bd.
Bondsman
v.
348 Ark.
because the administrative findings, or decisions are: In
(1) violation of constitutional or statutory provisions; (2) In excess of the agency’s statutory authority; Made (3) unlawful upon procedure; law; (4) Affected other by error or record; (5) Not substantial evidence of supported by or (6) Arbitrary, or characterized capricious, abuse of discretion.
Ark. Code Ann. 25-15-212(h) 2002). See also Arkansas (Repl. § 181, Human Servs.v. 331 Ark. 959 S.W.2d Dep’t 46 Thompson, Bd., v. (1998); Arkansas State Plant 311 Ark. Wright S.W.2d 42 In (1992). this court Wright, explained:
We have recognized administrative are better agencies courts, than equipped by specialization, insight through experi- ence, and more flexible to determine and procedures analyze issues underlying legal their and this affecting agencies, recogni- tion accounts for the limited review of adminis- scope judicial trative action and the refusal of the court to substitute its judg- ment and discretion for that of the administrative agency. 45; Oudin, Id. at 842 S.W.2d at see also 348 Ark.
S.W.3d 855. DHS’s order should be argues reversed it because violates the APA. avers that DHS’s interpre- tation of Act 1537 is because it clearly wrong, ignores legisla- tive intent of the act when it includes RNs in its enforcement actions and basis, measures on a compliance rather than a quarterly *8 basis. DHS counters that the monthly intent of the act legislative be ascertained from the may of the act itself. plain language DHS, to According intent 1537 was to legislative pro- vide incentive to those payments facilities that meet the nursing minimum Thus, as set out in staffing the Manual. we are with an issue of presented statutory interpretation.
When
issues of
reviewing
statutory interpretation,
we are mindful that the first rule in
and
considering
meaning
effect of a
reads,
statute is to construe it
as it
just
words
giving
their
and
ordinary
usually
common
accepted meaning
language.
Yamaha
Yamaha,
Motor
v.
44,
Richard’s Honda
344 Ark.
Corp.
38
263,
S.W.3d 356
Dunklin v.
(2001);
328 Ark.
944 S.W.2d
Ramsay,
76
When the
(1997).
of a statute is
and
language
plain
unambigu
ous, there is no need to resort to rules of
construction.
statutory
Buren,
451,
Burcham v.
Van
330 Ark.
City
trary
express
Id.
has circumvented
intent.
or omission
legislative
further held that it is also a rule of
We have
statutory
that the manner in which a law has been
construction
interpreted
be
considera
executive and administrative officers is to
given
it
Yamaha
tion and will not be
unless
is
wrong.
disregarded
clearly
44,
356;
Tube&
Motor
344 Ark.
S.W.3d
Conduit
Corp.,
Omega
An
(1993).
v.
312 Ark.
In the does not that Act 1537 argue present Appellant rather, it is that DHS incorrectly ambiguous; argues interprets court, of the act. In its brief to this acknowl- Appellant that under Act homes are edges required comply contained in DMS memorandum. further that the memorandum con- DMS acknowledges CNAs, tains standards not but also for RNs only however, LPNs. then argues, legislative plain intent of the act was to those enforce standards as only they CNAs. in Act According key apply Appellant, phrase 1537 is shall be program’s top priority “[t]he staff, the number of care increase direct Certified specifically *9 Nurse In of this argument, support Appellant points Assistants^] to the word which the is used to verb “specifically,” modify “increase.” to means “to According Appellant, specifically clearly Thus, define.” to the WEP encom- according only Appellant, certified passes employees. also to its attempts support argument the central of the
that
WEP was to
incentive for
purpose
provide
those facilities
for CNAs by
meeting staffing requirements
relying
certain
on
from
individuals who
in the
testimony
participated
held, however,
of Act 1537. We have
that when statute
drafting
is
extrinsic facts should not be
unambiguous,
plain
permitted
to alter the
of the
in the
used
statute. See
meaning
language
44,
356;
YamahaMotor
344 Ark.
38 S.W.3d
v.
Corp.,
Yarbrough
479,
stated,
336 Ark.
DHS that in order for argues this court to accept of Act it Appellant’s would have interpretation to ignore clear language WEP’s dictating was to “top” priority increase the number of direct DHS, care staff. According fact that there is a that means there are other “top” priority priori ties as well. We Our review of the agree. Act 1537 reveals that the intended to legislature incentives to nurs provide facilities for ing minimum meeting staffing requirements. fact that the act to CNAs does not mean specifically points the intent of the was to other legislature ignore personnel, particu fact, licensed In larly oral personnel. during this argument court, counsel for DHS stated that there was no regulation facilities to use WEP required nursing funds for CNAs’ salaries rather, the only; only that the monies be requirement used for Thus, labor costs. if the had intended to tie the WEP legislature CNAs, it only could have done so. Without omission, evidence of a this will court not read into drafting legis McLeod, lation what is not there. See 318 Ark. 888 S.W.2d out, 639. As previously on a pointed interpretation placed statute or an or regulation by with its department charged administration is entitled deference and should not be great *10 overturned unless Little Rock clearly Inc. v. wrong. Cleaning Sys.,
24 v. (1996); Douglass 268
Weiss, 935 S.W.2d 326 Ark. 14 Inc., (1994). S.W.2d Enters., Ark. 869 Dynamic Act 1537 that DHS’s interpretation cannot we say Accordingly, wrong. was clearly of monthly that DHS’s application argues
Finally, Appellant standards, con- is standards, as to quarterly opposed of Act 1537. Specifically, language trary plain recoup not DHS authority the WEP does give that argues based on an entire quarter enhancement payments wage month. one According standards set any noncompliance must be dictates that staffing Act 1537 requirements Appellant, basis. on a determined quarterly incorrectly interprets counters DHS it that the act It requires of section 127. argues the language each facility extent to which determine quarterly the rules established by promul meets the staffing requirements Term Memo A review of Care the DHS-DSM. Long gated by WEP, LTC-M-99-14, which DHS promulgated randum meet the that failure to facilities were notified reveals that nursing result in a would quarter minimum staffing reporting requirements made for the payments recoupment mini forth those further sets entire The memorandum in the basis. Nothing language mum on monthly care memorandum term requires of Act 1537 nor long rather than on a DHS to base its staffing requirements quarterly, dictate found in the act is DHS basis. only monthly, will not basis. this court on a Again, review quarterly compliance Ford, Ark. there. that is not See read into legislation that DHS’s we cannot say S.W.2d 20. Accordingly, erroneous. of Act 1537 clearly interpretation Affirmed.
Thornton, dissents. J.,
Arnold, C.J., participating. *11 the
Thornton, On issue of Justice, dissenting. Ray whether the the to director staffing requirements apply functions, of and not nursing performing supervisory providing care direct I dissent. cor- patients, majority respectfully states that the the of and the extra fund- rectly purpose legislation was to the increase number of direct care staff in the ing state’s home facilities. In with this the nursing manual keeping purpose, care, the sets out related to direct increasing and that “RN’s can also be used to specifically provides perform LPN duties the same It was not reporting requirements.” for this director of on necessary be for direct care nursing duty her absences there because was a during determination the and direct staffing CNA LPN care requirements assignments were filled the I think that the completely throughout direct care in accordance emphasis upon meeting requirements with the of the such special language efforts legislative funding is further the buttressed manual the by out language setting staffing for direct care: those hours
Only direct care spent class performing employee RN, LPN, (CNA, Director of Nursing) related duties will be the allowable in determination of the minimum meeting requirements. The rule added.) states hours
(Emphasis clearly spent per- direct care related duties were forming the hours intended to be included in the of calculation the fulfillment There was no requirement. director showing direct care required when the provide during quarter absences occurred because all direct care were responsibilities fully met CNAs and LPNs.
In its fails to consider that holding, majority purpose and, was to increase care direct mistak- my opinion, enly rule interprets establishing staffing for direct care. This in substan- requirements only results holding therefore, tial unfairness this and its I facility patients, dissent. respectfully
25-A DENIAL DISSENTING OPINION ON
SUPPLEMENTAL
PETITION FOR REHEARING
OF
*12
The Appropriation be shall top priority The enhancement wage program’s staff, Nurse the number of direct care Certified specially increase residents, facility and shall be (CNAs), nursing Assistants serving are the which in staffing requirements utilized to meet minimum Term effect rule and are recorded in the Medicaid Care Long by each previous Provider Manual for last day 127(a). Act Section Appropriation this that the correct contends interpretation pas- Appellant results facilities meet in nursing sage requirement staffing that, the CNAs. further asserts con- for requirements Appellant Act, the to the clear trary majority opinion it to DHS all enhancements received reimburse for wage requires a when a occurred in one RN vacancy during quarter temporary all staff even though position, quarterly it is to return were met. out that required pay- points staff made enhancements in CNA direct care on ments to provide reflected the basis of a RN staff was not shortage temporary based computation upon quarterly reporting. Act The stated that in the nothing required majority opinion basis, on a rather that DHS base its staffing requirements quarterly
25-B However, than a basis. out the monthly appellant points provision found in the Act standard was to be that requiring staffing which was in the “recorded Medicaid Term Care Provider Long Manual last each Section day 127(a). previous quarter.” also out that the word does not points “monthly” statute, and that the appear criteria anywhere “quarterly” Act. appears throughout provides: 1999-2000, Beginning with first of SFY completed quarter the DHS-DMS shall provide per patient day enhance wage ment to each Medicaid certified The DHS- nursing facility. DMS shall determine on a basisthe extent to which each quarterly meets the facility established by enactments fo 82nd General Assembly byor rules promulgated the DHS-DMS to enhance rates. The DHS-DMS shall the entire recoup made to a payments *13 a which facility particular quarter during the nursing for facility failed meet the minimum staffing requirements.” section Appropriation 127(a) This (Emphasis added). month, provision directs not the clearly was to be quarter, the time which the standard by was measured. period asserts is-nothing Appropria- “[t]here tion Act that allows DHS to determine on based compliance standards.” Cave Home suffered unex- monthly an City Nursing staff pected one-month but shortage eight days during period recovered and made for the next loss two months up during that made The statute that the up provides numbers are based not the month. statu- That upon quarter, cannot be tory overturned an administrative rule requirement should providing monthly reports. statutory provision control. asserts, and I agree, majority’s holding Therefore,
results in substantial unfairness. I would grant peti- tion for rehearing.