CHARLESTON — The West Virginia Intermediate Court of Appeals reversed a ruling from the West Virginia Department of Health and Human Resources Board of Review that suspended government benefits for the YMCA of Parkersburg.
The YMCA of Parkersburg appealed an Aug. 3, 2022, order of the West Virginia Department of Health and Human Resources Board of Review affirming the decision of the DHHR to issue first strikes to YMCA’s Parkersburg and Williamstown facilities under the West Virginia child care subsidy program.
"Based upon our review of the record and applicable law, we find that the BOR erred in affirming DHHR’s issuance of first strikes against YMCA, as child care services for the children at issue were not improperly terminated," the opinion states. "Accordingly, we reverse the BOR’s August 3, 2022, order."
Chief Judge Dan Greear authored the court's opinion. Judge Thomas Scarr concurred and filed a separate opinion.
"The first strikes were issued due to YMCA’s alleged improper termination of child care services to two children enrolled at its facilities," the opinion states.
The YMCA of Parkersburg argued that the first strikes at issue weren't warranted as it did not improperly terminate childcare services for the named children.
The YMCA highlighted the importance of the issuance of these first strikes against its facilities, as the mere issuance of the first strikes discontinued payments, totaling approximately $250,000, that YMCA was otherwise qualified to receive under a federal stabilization program known as the American Rescue Plan Act of 2021.
The case began as the facilities received payments under two separate programs, a state subsidy program to financially assist qualified families with childcare costs, and a temporary federal grant program intended to stabilize the childcare industry during the COVID-19 pandemic.
While the issuance of the first strikes had no effect on the YMCA’s receipt of state subsidy payments, the strikes were determined by the federal stabilization program representatives to classify YMCA as "not in good standing" under the state subsidy program and, therefore, rendered YMCA ineligible to receive the federal stabilization program payments for a period of one year.
The incidents before the Board of Review included a 4-year-old boy who was being evaluated for autism, ADHD and defiance disorder. He was reported to behave inappropriately by hitting, kicking and pushing another child, as well as other objects, and during a second behavioral report, it was noted that while normally a third write-up would lead to expulsion but the center wanted to work to help the child stay in care.
After a third incident, the child was sent home and the parent was told he could not return until nine days later when the behavioral specialist returned, the opinion states. The child, however, did not return and the mother told the DHHR that the child was kicked out. A first strike was then issued for the center for not giving the family two weeks' notice.
The second matter involves L.G., a 6-year-old boy who attended YMCA’s After School Program in Williamstown. L.G. suffers from PTSD and is in foster care.
A YMCA behavioral report was issued for L.G. hurting other children and pushing/kicking objects on Feb. 14, 222. The foster parent was called to pick up L.G. The foster parent was informed L.G. could return on Feb. 28, 2022, however, the foster parent called the DHHR and informed them that the child had been expelled. Without conducting an investigation, the YMCA was issued a first strike.
"In its order, the BOR relies heavily on the fact that the children in these matters were suspended for somewhat longer periods than YMCA’s policy typically dictates," the opinion states. "Although the duration of the suspensions may have been a deviation from YMCA’s usual policy, that does not mean that the suspensions constituted, or were intended to be, terminations."
Greear wrote that the court agrees with the YMCA and found that the BOR's Aug. 3, 2022, decision was wrong, against the clear weight of the evidence, arbitrary, and capricious.
"The record clearly and undisputedly reflects that the suspension of child care services to L.G. and L.W. were suspensions as opposed to termination of child care services," Greear wrote. "The length of the suspensions for the children at issue herein was not decided by a formula or set number of days, but was based, as it should be, upon the individual needs of the child and YMCA’s ability to meet those needs on a set date certain (i.e., the return of a behavioral specialist from vacation or passage of time to allow effects of medicine to reflect in the behavior of the child)."
Greear wrote that the BOR erred in holding that the interruptions in childcare services to the two children constituted terminations of childcare services rather than suspension.
In his concurring opinion, Scarr wrote that he would have further found that the DHHR violated the YMCA's due process rights by issuing first strikes and suspending stabilization payments without first providing the YMCA with adequate notice and a meaningful opportunity to respond before stabilization payments were suspended.
"The BOR erred in upholding DHHR’s decision to terminate stabilization payments without providing YMCA with notice and a pre-termination opportunity to challenge the issuance of 'first strikes' and the resulting suspension of stabilization payments," he wrote. "These procedural shortcomings resulted in a violation of due process under both the state and federal constitutions."
West Virginia Intermediate Court of Appeals case number: 22-ICA-54
