Johnson Cnty. Dev. Supports v. Kansas Dept. of Soc. & Rehab. Serv.

216 P.3d 658

JOHNSON COUNTY DEVELOPMENTAL SUPPORTS, an Agency of Johnson County Government, Appellant, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES and Alberta Brumley, Appellees.

No. 100,293.

Court of Appeals of Kansas.

August 28, 2009.

LeeAnne Hays, of Johnson County Legal Department, for appellant.

Bruce A. Roby and John H. House, of Office of General Counsel, of Kansas Department of Social and Rehabilitation Services, for appellee.

J. Eugene Balloun and Christina L. Lewerenx, of Shook, Hardy & Bacon, L.L.P., of Kansas City, Missouri, for appellee Alberta Brumley.

James M. Kaup, of Kaup & Shultz, Attorneys at Law, LC, of Lawrence, for amicus curiae InterHab, Inc.

Before McANANY, P.J., GREEN and CAPLINGER, JJ.

CAPLINGER, J.

In this administrative appeal, Johnson County Developmental Supports (JCDS) challenges the district court's order affirming the decision of the Kansas Department of Social and Rehabilitation Services (SRS) overruling JCDS's denial of Alberta Brumley's application for affiliate status.

The primary issue on appeal involves whether SRS erroneously determined that Alberta Brumley did not have a "known" history of abuse, neglect, or exploitation of children or vulnerable adults, as set forth in K.A.R. 30-63-28(f), and thus she was not prohibited from affiliating with the agency as a paid provider of services for her disabled son.

We conclude the district court properly upheld SRS's interpretation of the term "known" in K.A.R. 30-63-28(f) to require more than mere allegations or suspicions of abuse. Rather, as the district court found, the term contemplates allegations of abuse, neglect, or exploitation that have been substantiated or confirmed after the parties have had an opportunity to present evidence and a determination has been made from conflicting evidence. Because none of the allegations of abuse against Alberta Brumley were substantiated or confirmed in this manner, the district court did not err in affirming the agency's decision directing JCDS to enter into an affiliation agreement with Alberta.

Factual and procedural background

Delmar and Alberta Brumley (the Brumleys) served as licensed foster care providers for many years until April 15, 1993, when SRS did not renew their license. While foster parents, the Brumleys accepted placement of approximately 100 to 150 foster children, many of whom were troubled teenagers.

One of those foster children, Jeremie, was born in October 1982 and was an infant when placed with the Brumleys. Jeremie has suffered from severe, lifelong, mental and physical disabilities. The Brumleys later adopted Jeremie with the understanding that SRS would continue to provide financial support to assist with Jeremie's care. In 2000, the Brumleys were appointed Jeremie's legal guardians. After Delmar suffered a stroke in 2004, Robert Hodgdon replaced Delmar as Jeremie's guardian.

While Jeremie was a minor, he received public assistance through the Attendant Care for Independent Living program. However, as he approached age 21, SRS and JCDS worked with the Brumleys to implement a plan to transition Jeremie into the Home and Community Based Services program for adults. The transition did not develop smoothly, and a care plan for Jeremie had not been implemented by his 21st birthday.

Because no care plan was in place, Jeremie received no public assistance for 18 months. JCDS and the Brumleys eventually agreed on several care plans, but SRS rejected these plans. In 2004, Delmar Brumley applied for affiliate status in order to become a paid provider for Jeremie.

In connection with the application, JCDS investigated the Brumleys' past association with SRS as foster parents and discovered several reports of abuse made against the Brumleys. However, only one report resulted in the filing of criminal charges against Alberta Brumley in 1994. Alberta eventually pled guilty to one misdemeanor charge of contributing to a child's misconduct, which related to keeping a foster child home from school on the recommendation of a sex therapist. The remaining charges were dismissed. Alberta's misdemeanor conviction was expunged in August 2000.

JCDS also discovered several other reports of abuse against the Brumleys, all of which were investigated and eventually deemed unfounded or simply unconfirmed. JCDS also learned that a former foster child of the Brumleys filed a civil suit against the Brumleys and SRS in 1993 alleging abuse by the Brumleys in the 1980's. However, the suit was later voluntarily dismissed by the plaintiff.

JCDS's investigation also disclosed that in 1992 the Brumleys' adopted son Douglas was killed from a blow to the stomach and other physical injuries incurred while staying with Kimberlee Lee, the Brumleys' adult daughter. Ultimately, Lee and her husband were convicted of the child's murder. However, the Brumleys were found not culpable in the child's death after an investigation determined that Alberta had placed the child with her daughter temporarily after Alberta underwent surgery.

Finally, JCDS's investigation determined that in May 1997 a nurse providing care to Jeremie Brumley reported that Alberta had falsified time sheets regarding her daughters' care of Jeremie. Although the Kansas Attorney General's office conducted a Medicaid fraud investigation, no charges were filed based on that investigation.

Based on the information obtained in its investigation, JCDS denied Delmar's application for affiliate status. That decision was not appealed.

Throughout 2004 and 2005 Alberta Brumley and Robert Hodgdon contacted state legislators in an effort to obtain their assistance in obtaining SRS's approval of a care plan for Jeremie that was acceptable to the Brumleys. As Jeremie's legal representatives, attorneys from the Disability Rights Center (DRC) also lobbied vigorously on Jeremie's behalf.

In February 2005, SRS and JCDS representatives met with the Brumleys to attempt to develop a workable care plan for Jeremie. Though a plan was not approved at the meeting, subsequent negotiations led to an agreement providing approximately $70,000 annually in self-directed care support for Jeremie. At the February meeting, a DRC attorney representing Jeremie inquired about whether Alberta could become a paid provider. JCDS welcomed Alberta's application but indicated the application would probably be denied. Alberta subsequently submitted an application seeking affiliate status in order to become a paid provider for Jeremie.

Based on the information obtained during the investigation of Delmar's previous application as well as additional information obtained from the Kansas Attorney General's and Johnson County District Attorney's offices, JCDS determined that Alberta had a "history" of abuse, neglect, or exploitation of a child under K.A.R. 30-63-28(f) and could not become an affiliated provider. JCDS denied Alberta's application on March 28, 2005. Jeremie, through the DRC, and Alberta appealed the denial of Alberta's application to the Johnson County Council of Community Members (Council).

Meanwhile, in correspondence dated March 11, 2005, SRS advised Jeremie's DRC attorney that SRS had approved a care plan permitting Jeremie's guardians to become paid providers. SRS did not initially advise JCDS of this plan.

On April 19, 2005, Alberta and SRS agreed to a care plan that permitted Alberta to become a paid provider but required the Brumleys to release SRS and JCDS from any liability resulting from the Brumleys' care of Jeremie.

On April 20, 2005, the Council declined to hear Alberta's appeal of JCDS's denial of Alberta's application for affiliation, reasoning that it lacked authority to interpret SRS regulations. On the same date, JCDS informed the Brumleys' billing affiliate, Resource Center for Independent Living (RCIL), that the Brumleys were ineligible for support or reimbursement payments. RCIL, in turn, contacted SRS and was directed by SRS to pay the Brumleys and told that SRS would inform JCDS of the decision.

On May 31, 2005, the DRC, on behalf of Jeremie, appealed JCDS's denial of Alberta's affiliate application to Margaret Zillinger, Director of SRS's Community Supports Services. In a letter decision dated June 3, 2005, Zillinger overruled JCDS' denial of Alberta's affiliation application and directed JCDS to enter into an affiliation agreement with Alberta. On June 27, 2005, JCDS requested an administrative hearing to challenge SRS's order requiring JCDS to affiliate with the Brumleys.

While the administrative proceeding was pending, JCDS threatened RCIL with termination of its affiliate status if RCIL did not discontinue payments to Alberta by April 30, 2006. Jeremie, through the DRC, and the Brumleys filed suit in Johnson County District Court seeking a temporary restraining order preventing JCDS from refusing payment to Alberta. The district court granted the requested restraining order and ultimately granted an injunction against JCDS.

The administrative law judge (ALJ) assigned to JCDS's appeal of SRS's affiliation order conducted a 2-day administrative hearing on December 19-20, 2006. At the hearing, JCDS introduced the testimony of Jennifer Bustamonte, who was one of the Brumleys' foster children in 1984-85 and was listed as a witness in the 1994 abuse complaint against Alberta Brumley. Bustamonte testified regarding abuse of other foster children of the Brumleys that she claimed to have witnessed more than 20 years earlier.

The ALJ ultimately issued an order agreeing with SRS's interpretation of K.A.R. 30-63-28(f) and affirming SRS's decision ordering JCDS to affiliate with Alberta Brumley. Upon JCDS's motion, however, the district court stayed the ALJ's order pending review. JCDS then appealed to SRS's State Appeals Committee, which issued a final order on June 19, 2007, incorporating, adopting, and affirming the ALJ's order.

JCDS appealed SRS's final decision to the district court, contending the ...