                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Helen Veseley through                         :
Trinity Living Center, L.P.,                  :
                          Petitioner          :
                                              :
                     v.                       :
                                              :
Department of Public Welfare,                 :   No. 2220 C.D. 2014
                       Respondent             :   Submitted: July 2, 2015



BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: September 25, 2015

              Helen Veseley (Veseley), through Trinity Living Center, L.P. (TLC)
(Petitioner), petitions this Court for review of the Department of Public Welfare’s
(DPW)1 November 10, 2014 Final Administrative Action Order affirming the
Administrative Law Judge’s (ALJ) decision dismissing Petitioner’s appeal as
untimely. Petitioner presents two issues for this Court’s review: (1) whether the ALJ
violated Veseley’s due process rights by denying her an evidentiary hearing on her
appeal’s timeliness; and (2) whether the Mercer County Assistance Office’s (CAO)
dismissal of Veseley’s appeal constitutes grounds to allow an appeal nunc pro tunc.
After review, we affirm.

       1
         Effective November 24, 2014, DPW was officially renamed the Department of Human
Services. See Act of June 13, 1967, P.L. 31, added by Section 2 of the Act of September 24, 2014,
P.L. 2458, 62 P.S. § 103(a) (effective November 24, 2014). However, because all the proceedings
occurred before the official name change, we will refer to Respondent as DPW herein.
              On December 6, 2012, Veseley was admitted to TLC, a long term care
nursing facility. On January 9, 2013, the CAO received an application for Medical
Assistance (MA) Long-Term Care (MA/LTC) benefits filed on Veseley’s behalf.
The application was completed and signed by Veseley’s daughter Shirley Wilson
(Wilson), who is Veseley’s legally-appointed Power of Attorney (POA).                           On
February 22, 2013, the CAO sent an MA/LTC denial notice (Notice) to Veseley
denying her MA/LTC benefits application for failure to be interviewed and complete
the application process. No appeal was filed by Veseley, TLC or her POA within the
applicable time period. TLC appealed from the Notice on July 28, 2014, over a year
after the Notice date. On October 31, 2014,2 the ALJ dismissed Petitioner’s appeal as
untimely. Petitioner appealed to DPW’s Bureau of Hearings and Appeals. On
November 10, 2014, DPW affirmed the ALJ’s decision. Petitioner appealed to this
Court.3
              Petitioner first argues that the ALJ violated Veseley’s due process rights
by denying Veseley an evidentiary hearing on the timeliness of her appeal. We
disagree.
              Initially, we recognize that Section 275.1 of DPW’s Regulations
provides in pertinent part:

              (a) Right to appeal and have a fair hearing. The policy
              with regard to the right to appeal and have a fair hearing
              will be as follows:
              (1) The freedom of the applicant or recipient to request a
              hearing is a fundamental right and is not to be limited or
              interfered with in any way.


       2
         The order incorrectly states the date as October 31, 2013.
       3
         “Our scope of review in an appeal of an adjudication of . . . DPW is limited to determining
whether constitutional rights were violated, an error of law was committed or whether necessary
findings of fact are supported by substantial evidence.” Karpinski v. Dep’t of Pub. Welfare, 13
A.3d 1050, 1052 n.3 (Pa. Cmwlth. 2011).
                                                 2
(2) The regulations contained in this chapter, in accordance
with the law, afford every person applying for or receiving
a money payment, [MA], food stamps or services the right
to appeal from a Departmental action or failure to act and to
have a hearing if he is dissatisfied with a decision refusing
or discontinuing assistance in whole or in part.
(3) As used in this chapter, the term departmental includes,
in addition to County Assistance Offices, agencies which
administer or provide social services under contractual
arrangements with [DPW].
(4) The term assistance as used in this chapter means a
money payment, [MA], food stamps and services.
(i) Right of appeal. Therefore, the opportunity for a hearing
will include the right of appeal from the following:
(A) A denial, suspension or discontinuance in whole or in
part.
(B) A change in the amount of payment.
(C) A denial, discontinuance, reduction or exclusion from a
Departmental service program including the failure to take
into account the client’s choice of a service or a
determination that he must participate in a service program.
....
(b) Objectives of appeals and fair hearings. The objectives
of appeals and fair hearing will be as follows:
(1) To afford applicants and recipients an opportunity for an
impartial, objective review of decisions, actions and delays,
or in actions made by County Assistance Offices and
[DPW].
(2) To settle the issue or issues raised by the client in
requesting a hearing and to produce a clear and definitive
decision setting forth the findings of [DPW].
(3) To contribute to uniformity in the application of
Departmental regulations.




                             3
                (4) To reveal aspects of Departmental regulations that are
                deficient, inequitable, or constitute a misconstruction of
                law.

55 Pa. Code § 275.1. However, Section 275.3 of DPW’s Regulations states, in
relevant part:

                (b) Time limitations on right to appeal. An applicant or
                recipient must exercise his right of appeal within the
                following time limits. Appeals which do not meet the
                following time limitations will be dismissed without a
                hearing:
                (1) Thirty days from the date of written notice of a
                decision or action by a County Assistance Office[.]

55 Pa. Code § 275.3 (emphasis added).
                Petitioner cites Martin v. Department of Public Welfare, 514 A.2d 204,
208 (Pa. Cmwlth. 1986) for its holding: “[W]here the timeliness of an appeal turns on
factual considerations, an applicant must be afforded a hearing in which those
considerations are explored and an opportunity must be given to the applicant to
offer proof in support of a claim that an appeal was timely filed . . . .”
Petitioner’s Br. at 14 (emphasis added). However, Petitioner does not proffer any
undisputed facts which would support a claim that the appeal was timely filed.
Rather, the record evidence makes clear that DPW mailed a copy of the Notice to
TLC on February 22, 2013, informing TLC that it had “been designated to receive a
copy of [the] [N]otice on behalf of [Veseley] . . . .” Reproduced Record (R.R.) at 3a.
The Notice provided that “[Veseley’s] eligibility for benefits ha[d] been reviewed and
[she] did not qualify for [MA/LTC][4] because [she] did not finish the process to see if
[she] qualif[ied].”      Id. The Notice further advised: “If you do not agree with this
decision, fill out the enclosed Fair-Hearing form, then mail it or give it to your


       4
           This sentence was written twice, i.e., once in reference to MA and again in reference to
LTC.
                                                 4
caseworker by March 24, 2013.” Id. It is undisputed that Petitioner did not appeal
from that decision until July 28, 2014. R.R. at 1a.
              Further, upon receipt of the appeal, DPW forwarded a Rule to Show
Cause (Rule) to Petitioner to explain why Petitioner believed the appeal was timely.
In response to the Rule, Petitioner averred:

              Despite repeated assurances to [TLC] that [Wilson] would
              sign authorizations permitting [TLC] to represent Veseley
              in the MA process and obtain [Veseley’s] financial
              information to complete Vesel[e]y’s first MA application,
              [Wilson] repeatedly refused to do so. As a result of
              [Wilson’s] conduct, neither Veseley nor [TLC] [was]
              able to protect their interest and file an appeal of the
              denial which is the subject of this case.
              Based upon this evidence the [CAO] entered into a
              Stipulation approving Vesel[e]y’s appeal of the third
              application.[5]

R.R. at 10a (emphasis added). Contrary to Petitioner’s claim, Veseley signed an
admission agreement (Agreement) with TLC on December 7, 2012, expressly
providing: “The undersigned authorizes [TLC] to appeal on behalf of the resident any
decision by the County Assistance Office which would deny the resident eligibility
for [MA] and act as the resident’s agent throughout the appeal process, including at
administrative hearings.” R.R. at 114a. Wilson’s conduct did not prevent Petitioner
from filing a timely appeal, as TLC was specifically assigned that right pursuant to
the Agreement, and was notified of that right in the Notice. Thus, Petitioner was not
entitled to a hearing on the timeliness of Veseley’s appeal. Accordingly, Veseley’s
due process rights were not violated by DPW denying her an evidentiary hearing.
              Petitioner next argues that CAO’s dismissal of Veseley’s MA/LTC
benefits application constitutes grounds to allow an appeal nunc pro tunc because the

       5
         Notably, Petitioner timely appealed from the denial of the third MA/LTC application. See
R.R. at 68a.
                                               5
application was denied due to Wilson’s failure to keep her interview appointment.
Petitioner specifically contends that, based on a February 20, 2009 Medicaid-LTC
Policy Clarification (Clarification), said interview was not required.
             “[A]n appeal nunc pro tunc will be allowed only where the petitioner[’]s
delay was caused by extraordinary circumstances involving fraud, a breakdown in the
administrative process, or non-negligent circumstances related to the petitioner, his
counsel or a third party.” Lancaster Nursing Ctr. v. Dep’t of Pub. Welfare, 916 A.2d
707, 712 n.5 (Pa. Cmwlth. 2006) (quoting C.S. v. Dep’t of Pub. Welfare, 879 A.2d
1274, 1279 (Pa. Cmwlth. 2005)). Petitioner does not dispute that Veseley’s appeal
was filed untimely; rather, it claims an inequity in the dismissal because Wilson did
not act in Veseley’s best interests. Petitioner’s claim lacks merit because the record
clearly establishes that TLC could have timely appealed from the CAO’s decision
upon its receipt of the Notice.
             Moreover, the Clarification that Petitioner relies upon provides:
             Policy Clarifications
             Medicaid - Long Term Care
             PMN14623404

             Agency: CAOs
             Citations:

             Subject: LTC Application/Renewal Interview Requirements
             Is the CAO required to complete an interview on all LTC
             applications/renewals?

             Response By: Division of Health Services Date: 02/20/09
             No, LTC applications and renewals do not require a
             telephone or face-to-face interview. However[,] if there is
             conflicting information or if the application is
             incomplete, the CAO may cho[o]se to schedule either a
             telephone or face-to-face interview in order to obtain
             additional information needed to determine eligibility.



                                           6
Petitioner’s Br. at Appendix A (emphasis added). In addition, Section 125.84(c) of
DPW’s Regulations states that “[a] personal interview with an applicant is required.”
55 Pa. Code § 125.84(c).
            Given that the Clarification still gives the CAO the option of scheduling
an applicant interview, and Section 125.84(c) of DPW’s Regulations expressly
requires an applicant interview, the CAO’s denial of benefits on that ground is not a
basis for nunc pro tunc relief. Indeed, while the alleged inequity in the application’s
dismissal may go to the merits of the appeal itself, it is not a cause for the delay in
filing the appeal.    Therefore, this Court concludes that DPW did not err in
determining that Petitioner’s appeal was untimely and dismissing it pursuant to
Section 275.3(b) of DPW’s Regulations.
            For all of the above reasons, DPW’s order is affirmed.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Helen Veseley through                    :
Trinity Living Center, L.P.,             :
                          Petitioner     :
                                         :
                   v.                    :
                                         :
Department of Public Welfare,            :   No. 2220 C.D. 2014
                       Respondent        :


                                       ORDER

             AND NOW, this 25th day of September, 2015, the Department of Public
Welfare’s November 10, 2014 Final Administrative Action Order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
