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In Re Appeal of Charlotte Rumsey

August 31, 2012

IN RE APPEAL OF CHARLOTTE RUMSEY


On Appeal from Human Services Board April Term, 2012 Charles Gingo, Chair

The opinion of the court was delivered by: Dooley, J.

In re Rumsey

(2011-356)

2012 VT 74

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. DOOLEY, J. 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(O). 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 concluded that 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.

ΒΆ 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 ...


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