         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Dougherty by              :
Sayre Health Care Center,        :
                                 :
                      Petitioner :
                                 :
                 v.              : No. 30 C.D. 2017
                                 : Submitted: September 15, 2017
Department of Human Services,    :
                                 :
                      Respondent :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                     FILED: February 15, 2018


             Robert Dougherty (Dougherty) by Sayre Health Care Center (Sayre)
petitions for review of the December 8, 2016 final order of the Department of Human
Services (Department), Bureau of Hearings and Appeals (BHA). The order affirmed
the decision of an administrative law judge (ALJ) dismissing Dougherty’s appeal
from a determination by the Bradford County Assistance Office (CAO) as untimely.
We affirm.
             The relevant facts are not disputed. In February 2015, Dougherty was
admitted to Sayre, a long-term care facility. In May 2015, Dougherty’s son, who
was also his power-of-attorney, submitted an application for long-term living
Medical Assistance (MA) benefits.      In June 2015, the CAO issued letters to
Dougherty, his son, and Sayre, advising them that the application was incomplete
and requesting additional information to establish Dougherty’s financial eligibility
for benefits. A Sayre representative contacted Dougherty’s son, who confirmed that
he provided the information to the CAO. Contrary to his assurances, however, the
son had not given the CAO the requested documentation. As a result, on July 8,
2015, the CAO issued a notice to Dougherty, his son, and Sayre finding Dougherty
ineligible for MA, and, specifically, for payment of long-term care (LTC) services,
because the requested financial information was not submitted. No appeal was taken
from the July 2015 Notice.
             Sayre eventually learned that Dougherty’s son was misappropriating
Dougherty’s funds. On March 11, 2016, Sayre obtained a court order directing the
son to provide financial documents, and Sayre filed a new application for MA
services on Dougherty’s behalf on March 14, 2016. By notice dated April 11, 2016,
the CAO approved the application and determined that Dougherty was eligible for
LTC benefits retroactively to December 1, 2015. See 55 Pa. Code §181.12(a)
(providing that the earliest possible date for retroactive MA benefits to begin is the
first day of the third month preceding the month of application).
             Sayre appealed that determination on May 9, 2016, asserting that
Dougherty’s eligibility for LTC benefits should be determined retroactively to May
2015, because the denial of the initial application for benefits was due solely to the
misconduct of his son. In a post-hearing brief, Sayre argued that the appeal should
be considered a nunc pro tunc appeal of the July 8, 2015 denial notice. Sayre
asserted that because the appeal stated that Dougherty was seeking to have the
benefits retroactively applied, he had impliedly requested a nunc pro tunc appeal of
the prior determination.


                                          2
              In a September 6, 2016 adjudication, the ALJ rejected that argument
and concluded that the appeal only concerned the notice of April 11, 2016, which
addressed Dougherty’s second (March 14, 2016) application. The ALJ observed
that under 67 Pa. C.S. §1102,1 a request for a hearing before the BHA must be filed

       1
        Section 20.1 of the Act of December 3, 2002, P.L. 147 (Act 142-2002), amended Title 67
(Public Welfare) of the Pennsylvania Consolidated Statutes by establishing the procedures to be
followed in hearings before the BHA on MA program appeals. Those amendments are codified at
67 Pa.C.S. §§1101-1106.

       In relevant part, the provisions at 67 Pa. C.S. §1102 state as follows:

              (a) General rule.-A provider that is aggrieved by a decision of the
              department regarding the program may request a hearing before the
              bureau in accordance with this chapter.
              (b) Filing:
              (1) Except as provided in paragraph (2), a provider must file a
              request for a hearing with the bureau in accordance with all of the
              following:
              (i) The request must be in writing.
              (ii) The request must be filed with the bureau:
              (A) within 30 days of the date of the notice of the departmental
              action; or
              (B) if notice was given by mail, within 33 days of the date of the
              notice of the departmental action.
              (iii) If the request was filed by first-class mail, the United States
              postmark appearing upon the envelope in which the request was
              mailed shall be considered the filing date. The filing date of a request
              filed in any other manner or bearing a postmark other than a United
              States postmark shall be the date on which the request is received in
              the bureau.
              (2) Paragraph (1) does not apply in the following cases:
              (i) In a nunc pro tunc hearing under subsection (c).
              (ii) To the extent set forth in the standing order of the bureau issued
              under subsection (g).


                                                 3
              (iii) To the extent modified by regulations promulgated under
              section 1106 (relating to regulations).
              (c) Hearings nunc pro tunc-The bureau, upon written request and
              for good cause shown, may grant leave for the filing of requests for
              hearing nunc pro tunc pursuant to the common law standards
              applicable in analogous cases in courts of original jurisdiction.
              (d) Amendment.-A request for a hearing may be amended as of
              right within 90 days after the date of filing of the request.
              (e) Adjudication.-
              (1)The bureau shall hold hearings and conduct adjudications
              regarding timely filed requests for hearing in accordance with 2
              Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
              Commonwealth agencies).
              (2) Notwithstanding paragraph (1), in holding hearings and
              conducting adjudications, the bureau shall do all of the following:
              (i) Act independently of employees or public officials of the
              department whose actions are subject to review before the bureau.
              (ii) Not engage in ex parte communications concerning a hearing
              with any party to the hearing.
              (iii) Promptly adjudicate timely filed requests for hearing.
              (iv) Establish deadlines for interim and final actions by the bureau
              and parties to any proceeding before the bureau.
              (v) Allow reasonable and necessary discovery in the form of
              interrogatories, requests for the production of documents, expert
              reports, requests for admissions and depositions of witnesses and
              designees of parties, subject to case management plans and
              limitations as necessary to facilitate the prompt and efficient
              issuance of adjudications.
              (vi) Consider and, when appropriate, grant applications by affected
              parties to consolidate hearings involving substantially similar or
              materially related issues of law or fact.
              (vii) Conduct de novo review of all factual and legal issues raised
              by a provider in the request for hearing based upon evidence
              presented to the bureau.
67 Pa. C.S. §1102.

                                                4
within 30 days of the decision appealed from. The ALJ denied the appeal, and the
BHA affirmed by final order dated September 9, 2016. No further appeal was taken.
            Thereafter, on September 13, 2016, Sayre filed a motion on
Dougherty’s behalf with the BHA, seeking permission to appeal the July 8, 2015
denial of benefits nunc pro tunc and asserting that fraud committed by Dougherty’s
son was a valid reason for granting nunc pro tunc relief. Reproduced Record (R.R.)
at 3a-7a. An ALJ held a hearing on November 18, 2016.
            Lynn Evans, a CAO income maintenance caseworker, testified that the
CAO received Dougherty’s initial application on June 4, 2015. She said that
although requests for verification of Dougherty’s financial information were sent to
Dougherty, his son, and Sayre, nothing was received by the due date, and the
application was rejected on July 7, 2015. Evans stated that no appeal was filed, and
no one called the CAO. Evans testified that Dougherty’s son contacted the CAO on
November 24, 2015, asking what information was still needed, and a second
application was received on March 14, 2016. Evans explained that the second
application was approved on April 11, 2016, retroactively to December 1, 2015, in
accordance with 55 Pa. Code §181.12(a). She noted that Dougherty filed an appeal
from that April 11, 2016 eligibility determination and a hearing had been held, but
the CAO did not receive the appeal from the July 2015 notice until September 13,
2016.
            Debbie Scrivener, Sayre’s business manager, testified that while
Dougherty’s initial application was pending, she repeatedly contacted Dougherty’s
son asking for the documentation needed to establish Dougherty’s financial
eligibility. She said that she relied on his representations that he had sent the
information to the CAO and that by the time she realized that he was not being


                                         5
truthful the time for filing an appeal had expired.                 Scrivener explained that
Dougherty’s son was misappropriating Dougherty’s funds,2 and Sayre did not
receive the financial documentation from Dougherty’s son until a March 11, 2016
court order directed him to provide it. Scrivener testified that Sayre worked with
Dougherty’s son to file a new application on March 14, 2016.
                By order dated December 8, 2016, the ALJ dismissed the motion for
nunc pro tunc relief. The ALJ acknowledged that if Dougherty’s son had provided
the requested information with the initial application in June 2015, Dougherty would
have been eligible for payment of LTC services. However, the ALJ concluded that
Dougherty and his representatives had the information necessary to file an appeal
from the first decision in March 2016, and nothing prevented them from filing an
appeal instead of, or along with, the second application for benefits. The BHA
affirmed the ALJ’s order.
                On appeal to this Court,3 Dougherty first argues that the BHA erred by
failing to treat the May 9, 2016 appeal and the September 13, 2016 motion as a
timely nunc pro tunc appeal of the July 8, 2015 determination. Dougherty further
asserts that the ALJ abused his discretion in denying the request for nunc pro tunc
relief because the denial of the initial application was the result of fraud, the issue
was raised at a hearing within 45 days of discovering the fraudulent conduct, and the
Department would not be prejudiced by any delay.


       2
           December 8, 2016 Adjudication, Finding of Fact No. 16.

       3
        Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether findings of fact are supported by substantial
evidence. The Manor at St. Luke Village v. Department of Public Welfare, 72 A.3d 308, 312 n.4
(Pa. Cmwlth. 2013).


                                                6
               The Department responds that the failure to timely appeal an
administrative agency’s action is a jurisdictional defect.                Falcon Oil Co. v.
Environmental Resources, 609 A.2d 876 (Pa. Cmwlth. 1992). Nevertheless, the
Department recognizes that it may permit an appeal nunc pro tunc where a delay in
filing an appeal is caused by extraordinary circumstances involving fraud or some
breakdown in the administrative process, or non-negligent circumstances related to
the appellant, his counsel, or a third party. H.D. v. Department of Public Welfare,
751 A.2d 1216, 1219 (Pa. Cmwlth. 2000). The appellant must also establish that (1)
the appeal was filed shortly after learning of and having an opportunity to address
the untimeliness; (2) the untimeliness is of a short duration; and (3) the appellee will
not be prejudiced by the delay. Id.
               Sayre contends that the deliberate misrepresentations by Dougherty’s
son establish the requisite extraordinary circumstances warranting nunc pro tunc
relief. However, the Department argues that once Sayre learned that the basis of the
denial was a lack of financial information, Sayre knew or should have known that
the information had not been submitted to the CAO and did not act to protect its
interest. Citing the regulation at 55 Pa. Code §275.4(e)(3) (relating to postponement
or continuation of a hearing), the Department explains that Sayre’s inability to obtain
information from Dougherty’s son did not prevent Sayre from filing a timely appeal
or limit its ability to prepare for an appeal hearing.4 According to the Department,
Sayre could have filed a timely appeal by August 7, 2015, but simply failed to do so.




       4
         The regulation states that an appellant “who wishes to postpone the hearing shall contact
the hearing officer and provide a reason for the request. The hearing officer may approve the
request for postponement or continuation of the hearing. The hearing will be rescheduled as soon
as possible.” 55 Pa. Code §275.4(e)(3).
                                                7
We agree that the misconduct of Dougherty’s son does not establish a basis for nunc
pro tunc relief.
             The Department also notes that by March 2016, Sayre admittedly was
aware of the alleged fraud by Dougherty’s son. Sayre does not argue that it was
precluded from appealing the June 2015 notice at that time or otherwise explain its
failure to do so. Although Sayre maintains that its second application, filed in March
2016, should have been considered a request to appeal the initial denial notice nunc
pro tunc, that argument was rejected by the ALJ, and Sayre did not appeal the BHA’s
September 9, 2016 final order to this Court. As a consequence, Sayre’s arguments
related to its March 2016 application are waived. Pa. R.A.P. 1551(a).
             We conclude that Sayre failed to establish that its delay in filing an
appeal was caused by extraordinary circumstances involving fraud or some
breakdown in the administrative process, or non-negligent circumstances, or that its
appeal was filed shortly after learning of and having an opportunity to address the
untimeliness. H.D., 751 A.2d at 1219. Therefore, the BHA did not err in denying
Sayre’s September 13, 2016 request for nunc pro tunc relief.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                          8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Dougherty by              :
Sayre Health Care Center,        :
                                 :
                      Petitioner :
                                 :
                 v.              : No. 30 C.D. 2017
                                 :
Department of Human Services,    :
                                 :
                      Respondent :


                                  ORDER


            AND NOW, this 15th day of February, 2018, the December 8, 2016
Final Administrative Action Order of the Department of Human Services, Bureau of
Hearings and Appeals is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
