WEST VIRGINIA RECORD

CHARLESTON – Fifteen years after Debbie Plumley finished serving time for felony incest, she must close an informal nursing home in Milton because of her crime.

The West Virginia Supreme Court of Appeals decided Oct. 12 that her conviction disqualified her from running a "legally unlicensed health care home."

Three of five Justices reversed Cabell Circuit Judge David Pancake, who had blocked state action to close the home.

State law allows unlicensed care for up to three persons in a home. Though the state does not license these homes, it does regulate them.

Care givers must have a history free of abuse, neglect or fraud in the care of dependent persons.

Care givers must submit to a background check for convictions of relevant crimes.

Plumley ran a health care home at 1314 James River Turnpike for years before state regulators knew she did.

When inspectors surveyed the property in 2005, they found four residents in Plumley's care. They told her that for four persons, she needed an assisted living license.

She discharged one resident, eliminating the need for a license.

She still had to register as an unlicensed home and submit to a background check, however, and the background check found a 1987 incest conviction.

At the Department of Health and Human Resources, the office of health facility licensure and certification ordered her to close the home.

She asked for a hearing, and the department held it in May 2005. She told the hearing examiner she pleaded guilty and served five years at Huttonsville correctional facility.

She argued that passage of time reduced the impact of her crime.

She argued that the crime did not involve a dependent person within the meaning of the home health care law.

The hearing examiner found her ineligible to run a health care home.

In November 2005, the department ordered her to close the home.

Plumley appealed to Cabell Circuit Court.

In June 2006 Pancake reversed the order, ruling that "indiscretions of a number of years gone by" should not reduce or take away Plumley's livelihood.

He wrote, "…she did not perform the incest." He wrote that she "permitted it to happen while intoxicated and while in a tumultuous period of her life."

The department appealed.

At oral arguments in September, Alice Warner Shumlas of Charleston represented the department and Victor Navy of Barboursville represented Plumley.

Chief Justice Robin Davis and Justices Brent Benjamin and Spike Maynard reversed Pancake and reinstated the department's order.

Benjamin wrote that Plumley's conviction constituted evidence of abuse or neglect in the care of a dependent person within the meaning of the home health care law.

"Indeed, there are few persons more dependent than a minor child is upon his or her parent," he wrote.

He wrote that Pancake exceeded the scope of his review authority, made findings of fact not supported by the record before the department, and substituted his judgment for that of the department.

He wrote that Plumley presented no evidence to the department about her livelihood, and he added that it wasn't relevant anyway.

Justices Joseph Albright and Larry Starcher dissented.