No. 33287 Debbie Plumley v. West Virginia Department of Health and Human Resources
/Office of Health Facility Licensure and Certification
Albright, J., dissenting:
This case should forever be known as the No Chance of Redemption; Scarlet Letter case.
The lower court opinion and order in this case evidenced a thorough and sensitive
consideration of the evidence and a thorough and sensitive consideration of the language and
underlying purposes of Article 5E, Chapter 16 of the Code of West Virginia of 1931, as amended,
providing for the Registration and Inspection of Service Providers in Legally Unlicensed Health
Care Homes, and of the regulations promulgated under the authority of that statute.
In essence, the lower court gave a reasoned, limiting, interpretation to the provisions of that
statute and the regulations promulgated under it which operate to prohibit the granting of registration
to certain prospective service providers in legally unlicensed health care homes. In effect, the lower
court sought to ascertain whether the record disclosed that the applicant had been guilty of abuse or
a criminal act that might reasonably be expected to be a threat to the dependent population the
applicant sought to serve. After carefully considering the record of the particular facts underlying
this applicant's felony conviction in 1987, and the applicants' employment activities since that time,
the lower court concluded that those underlying facts, that felony conviction and that employment
record clearly demonstrated that the applicant posed no threat whatever to the dependent population
she sought to serve. My colleagues who joined in the majority opinion chose instead a rigid, all encompassing
interpretation of the statute and regulations, setting in concrete bright line syllabus points in support
of their approach to the statute. The clear effect of the majority opinion is to announce that there can
be no extenuating circumstances, no reasoned exceptions, no redemption!
The reality of this case is that the applicant did not herself engage in an incestuous act with
her child. The reality is that the lapse of judgment--the criminal act of which she was guilty in
1987--arose out of a serious failure to protect her child from sexual assault by another person, for
which she has expressed remorse and for which she has been punished by rather lengthy
imprisonment. The reality of the case is also that the lower court heard substantial evidence that for
a long time the applicant had in fact rendered to an aged dependent population the very services
for which she was seeking registration, all without any incident or occasion that suggests in the
slightest that she might abuse or hurt that aged dependent population. The lower court could see
what my majority colleagues would not:
There simply was nothing in record which demonstrated any reasonable likelihood
that this applicant, in these circumstances, had or would abuse or hurt the dependent
population she sought to serve.
The lower court properly concluded that the designee of the Secretary of the Department of Health
and Human Resources serving as the Director under the statute had unreasonably applied the
statute and the regulations to deny this applicant registration.
In reversing that conclusion, the majority has conjured up new law, rigid, no-holds barred,
bright lines of prohibition that deny the possibility--indeed the high probability--that a person can
achieve redemption, can overcome failings, can become a productive, good citizen deserving of
employment and, in this case, registration as a service provider to an aged dependent population.
Accordingly, her reward from this Court is to be awarded a Scarlet Letter. From that I
dissent, with a special note of admiration for the courage and sagacity of the lower court.