In re Licensure of Shelly Ann Vandevord Day Care Home

510 P.3d 14 (Table)

In the MATTER OF the Licensure of SHELLY ANN VANDEVORD DAY CARE HOME.

No. 123,827

Court of Appeals of Kansas.

Opinion filed May 27, 2022.

Amory K. Lovin, of Office of Legal Services, Kansas Department of Health and Environment, for appellant Kansas Department of Health and Environment.

Sean P. Edwards, of Sanders Warren Russell & Scheer LLP, of Overland Park, for appellee Shelly Ann Vandevord Day Care Home.

Before Malone, P.J., Schroeder and Hurst, JJ.

MEMORANDUM OPINION

Per Curiam:

One of our first tasks in an appeal is to determine if we have jurisdiction. Our jurisdiction is limited to final decisions of the district court. See K.S.A. 2020 Supp. 60-2102(a)(4). The Kansas Department of Health and Environment (KDHE) now appeals the district court's order remanding to KDHE for further findings and investigation regarding the revocation of Shelly Ann Vandevord's daycare license.

After KDHE submitted its brief, our motions panel issued a show-cause order questioning whether the district court's remand order was a final appealable order. Based on the parties' responses, we retained jurisdiction but ordered the parties to submit supplemental briefing on the jurisdictional issue, which the parties did. Upon review, we find the district court's order of remand is not a final appealable order. Accordingly, we dismiss KDHE's appeal for lack of jurisdiction.

FACTS

Vandevord operates a licensed home day care facility in Olathe. Based on various violations observed during inspections of Vandevord's day care between March 2018 and March 2019, KDHE sent Vandevord a notice of intent to suspend her license on March 20, 2019. In response, Vandevord requested an administrative hearing before an administrative law judge (ALJ) in the Office of Administrative Hearings. KDHE subsequently conducted two follow-up inspections in April 2019, observing some of the earlier violations had not been corrected. In light of these violations, KDHE filed a motion with the ALJ in May 2019, requesting it be allowed to modify its intended order from suspension to revocation, which the ALJ allowed. KDHE admits no further inspection of the day care occurred after April 2019.

The ALJ conducted an administrative hearing in January 2020 and issued an order several months later affirming the revocation order. The ALJ made a number of findings of fact and conclusions of law, the bulk of which the parties take no issue with on appeal. Relevant to issues on judicial review, the ALJ found Vandevord's testimony that she had corrected any remaining violations by May 13, 2019, was "something this tribunal may not consider." The ALJ further found:

"Anything that has occurred since the last survey was conducted on April 30, 2019 is irrelevant to these proceedings as that was not part of the consideration by the Agency and is not subject to review. The Agency is simply required to prove by a preponderance of the evidence available at the time of the action that the action was in compliance [with] the statutes, regulations and policies in force and effect at the time."

Vandevord filed a request for further administrative review with the Secretary of KDHE, which the Secretary denied in July 2020. Vandevord then timely petitioned for review in the district court pursuant to the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. Specifically, Vandevord asserted KDHE "unreasonably, arbitrarily, and capriciously revoked ... her daycare license." The district court held a hearing in December 2020. The district court found it was unreasonable as a matter of law for KDHE not to perform a follow-up inspection after April 2019 on the licensee, given the substantial delay in the proceedings while Vandevord's daycare remained open and operating. The district court also expressed some concerns over the ALJ's failure to consider whether Vandevord remedied the violations.

The district court summarized its overarching concern, stating: "My concern, very frankly, is we go from May of 2019 to [here] it is December of 2020 without a whisper of anybody checking on her." Accordingly, the district court found: "[T]he course of conduct to this point appears retroactively to be unreasonable. I'm not suggesting the revocation won't occur, but I don't think—the fact they've done nothing for quite some time tells me there's a serious problem with follow-up." The district court explained: "I'm simply remanding it to the agency.... I think the agency needs to do more fact-finding at this point in light of the considerable delay that's occurred." The district court also found there was "an insignificant record for the purposes of the time of the motion to revoke in the present day which has involved zero agency follow-up, period." In its written order, the district court remanded the matter to KDHE "for follow up and further inspection of [Vandevord's day care]," finding it was "unreasonable as a matter of law to not follow up on a licensee after the Notice of Intent to Revoke was issued in May of 2019 through [the December 7, 2020] hearing."

In response to our show-cause order, the parties promptly submitted supplemental briefing on the jurisdictional issue—whether the district court's order of remand is a final appealable order under K.S.A. 2020 Supp. 60-2102(a)(4) and K.S.A. 77-623. Additional facts are set forth as necessary.

ANALYSIS

Standard of Review

Under K.S.A. 77-623, "[d]ecisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases." We exercise the same statutorily limited review of an agency's action as does the district court, " ‘as though the appeal had been made directly to this court.’ " Kansas Dept. of Revenue v. Powell , 290 Kan. 564, 567, 232 P.3d 856 (2010). District courts have limited power of review under the KJRA and may only grant relief based on the enumerated circumstances in K.S.A. 77-621(c). Sheldon v. KPERS , 40 Kan. App. 2d 75, 79, 189 P.3d 554 (2008) (citing Jones v. Kansas State University , 279 Kan. 128, 139, 106 P.3d 10 [2005] ). However, we need not delve extensively into the analytical framework of the KJRA. Here, the threshold question—whether we have jurisdiction over KDHE's appeal—is ultimately dispositive to our decision.

We do not have jurisdiction over KDHE's appeal .

Under K.S.A. 2020 Supp. 60-2102(a)(4), a party may appeal a "final decision" in any action as a matter of right. The jurisdictional question before us is whether the district court's order of remand is a final appealable decision. "If not, the appeal is interlocutory and must be dismissed." Nickels v. Board of Education of U.S.D. No. 453 , 38 Kan. App. 2d 929, 931, 173 P.3d 1176 (2008). Whether jurisdiction exists is a question of law over which our scope of review is unlimited. See Via Christi Hospital Wichita v. Kan-Pak , 310 Kan. 883, 889, 451 P.3d 459 (2019). We have a duty to consider whether we have jurisdiction. Wiechman v. Huddleston , 304 Kan. 80, 84, 370 P.3d 1194 (2016). We start by looking at the district court's order for remand.

To begin with, the district court's order for remand lacks clarity. The written order stated it was remanding the matter to KDHE "for follow up and further inspection of [Vandevord's day care]." This seemingly contemplates a scope of remand potentially related to matters before and after the final agency action, which is further complicated by the somewhat imprecise statutory definitions of "final agency action" and "nonfinal agency action" under the KJRA. See K.S.A. 77-607(b)(1) (" ‘Final agency action’ means the whole or a part of any agency action other than nonfinal agency action."); K.S.A. 77-607(b)(2) (" ‘Nonfinal agency action’ means the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency."). And Kansas appellate courts often have been unable to provide a clearer distinction between final agency orders and final agency actions. See Blomgren v. Kansas Dept. of Revenue , 40 Kan. App. 2d 208, 213, 191 P.3d 320 (2008) ("A final agency action should not be confused with a final order.").

Fortunately, for purposes of this appeal, KDHE concedes "[t]he final agency action was when the Secretary of KDHE denied Ms. Vandevord's Petition for Administrative Review." This seems to be a correct interpretation, generally, because the Secretary could have granted relief through further hearing or investigation. See K.S.A. 77-527(d) - (f). Here, the final agency action did not occur until the Secretary denied Vandevord's petition for further administrative review on July 22, 2020. The ALJ stated he could not consider anything Vandevord did to correct the violations and come into compliance after April 2019. At the administrative hearing, Vandevord testified she resolved all the violations by May 13, 2019, which she also asserted in her response to KDHE's motion to amend, filed on May 17, 2019. KDHE moved to amend its prior notice of intent to suspend to revocation on May 6, 2019, but the ALJ did not grant the motion until May 31, 2019, following a prehearing conference on May 23, 2019. In other words, there was potentially a legitimate factual question or dispute regarding arguably relevant evidence bearing on the ALJ's order granting the motion to amend. And KDHE had notice of Vandevord's assertion the violations were remedied prior to the May 23, 2019 prehearing conference addressing the merits of its motion to amend.

Clarification of KDHE's reasons, if any, for not conducting additional follow-up while its motion to amend was pending appears generally relevant to the district court's consideration of whether KDHE's revocation action was "supported to the appropriate standard of proof by evidence that is substantial when viewed in light of...