Petitioners urge appeals court to vacate hearing-examiner summary-judgment in CON dispute

At oral argument before the Intermediate Court of Appeals, Richard Walters, counsel for Putnam County Aging Program, asked the court to vacate a hearing-examiner's grant of summary judgment in a CON proceeding, saying the examiner decided the case "on a record when there was no record." Walters argued the prehearing papers and scheduling orders did not permit a Rule 56-type summary disposition and said key testimony and exhibits had not been presented to the board.

Caleb Seckman, counsel for the West Virginia Health Care Authority, told the court the agency and the Administrative Procedures Act provide the authority to resolve matters by motion when discovery is closed and no genuine dispute of material fact remains. "Summary judgment fits into each of those," Seckman said, arguing the agency has rules enabling hearing examiners to decide motions and that the need methodology at issue here was satisfied.

Walters pressed that the hearing examiner's function is to develop a record for the board, not to make the final decision, and cited multiple code and regulatory sections (challenging the examiner's authority under statutes the petition identifies). Counsel for Panhandle Support Services, Brock Malcolm, added that in practice the authority's proceedings have used civil-procedure scheduling and dispositive-motion practices and that discovery deadlines had been set and observed.

The bench questioned whether discovery truly was closed and whether scheduled depositions (discussed during argument) could have affected a summary disposition. The parties reserved brief rebuttal time where indicated; the matter was submitted to the court.