            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin Fabie,                               :
                      Petitioner            :
                                            :
       v.                                   : No. 256 C.D. 2019
                                            : SUBMITTED: December 10, 2019
Department of Human Services,               :
                 Respondent                 :


BEFORE:         HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge
                HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                  FILED: January 13, 2020

       Justin Fabie (Recipient) petitions this Court for review of the January 4, 2019
order of the Secretary of the Department of Human Services (DHS) denying
reconsideration of the December 7, 2018 Final Administrative Action Order of the
Bureau of Hearings and Appeals (BHA). BHA’s December 7, 2018 order affirmed
the decision of an administrative law judge (ALJ) who concluded Recipient was not
able to direct his own care under the OBRA Waiver Program (Waiver Program)1
administered by DHS.

       1
          OBRA refers to the Omnibus Budget and Reconciliation Act of 1981 (Pub. L. No. 97-
35). 55 Pa. Code § 52.3. OBRA, in relevant part, established home- and community-based
services (HCBS) Medicaid waivers. These HCBS waivers enable individuals receiving medical
assistance to access long-term care services and support in their home or community, rather than
an institutional setting. The Commonwealth’s medical assistance program is authorized by Article
IV of the Human Services Code (formerly the Public Welfare Code), Act of June 13, 1967, P.L.
31, as amended, 62 P.S. §§ 401 – 493, and governed by the relevant provisions in Subchapter XIX
of the Social Security Act, 42 U.S.C. §§ 1396 – 1396w-5, as well as DHS regulations set forth in
                          I. Procedural and Factual Background
         In conjunction with Service Coordination of South Central PA (SCSCPA),2
and pursuant to provisions of the Waiver Program, Recipient has received home-
and community-based services (HCBS) since 2014.3 Initially, Recipient’s services
were self-directed under an arrangement known as the Participant-Directed Model,
which permits Recipient to hire, train, schedule, and supervise the direct care
workers (DCW) who render services in his home. Certified Record (C.R.) at 106.
The Participant-Directed Model is contrasted by the Agency-Directed Model of
services by which HCBS are rendered by an independent home healthcare service
provider. Id. A participant who chooses the Participant-Directed Model but is
unable to successfully direct his own services may be restricted to the Agency-
Directed model of services. Id. at 107. Recipient’s DCW is his mother, Sandra
Fabie.
         Once approved for the Waiver Program, the participant and his service
coordinator develop an individual service plan (ISP), which remains in place for a
year, unless the participant’s needs change. C.R. at 109-10. Thereafter, the service
coordinator annually reassesses the ISP. Id. at 111. Participation in the Waiver
Program may be terminated for various reasons, including fraud.                Id. at 114.
Instances of fraud include the receipt and submission of timesheets during periods
in which a participant is hospitalized and ineligible for HCBS. Id.

the Medical Assistance Manual, 55 Pa. Code §§1101.11 – 1251.81. Regulations governing the
Waiver Program are found in 55 Pa. Code §§ 51.1 – 52.65.

        SCSCPA is the entity authorized by DHS to coordinate Recipient’s services. Certified
         2

Record (C.R.) at 70.

         3
          Recipient suffers from a variety of ailments stemming from a 1999 motor vehicle
accident, including cognitive disabilities and vision impairment. Notes of Testimony (N.T.),
9/13/18, at 52-53, 55.


                                             2
       On September 4, 2014, Recipient signed an acknowledgement that he
received a copy of the SCSCPA participant handbook and reviewed the fraud and
financial abuse policy with his service coordinator, Kristen Jacobs. C.R. at 69. In a
subsequent agreement with SCSCPA dated July 13, 2015, Recipient acknowledged
he understood he could not receive HCBS while receiving care in a hospital,
rehabilitation facility, or nursing home. Id. at 74. Recipient further acknowledged
his responsibility to confirm the accuracy of timesheets submitted by his DCW. Id.
Ms. Jacobs reviewed SCSCPA’s policies, including the fraud and financial abuse
policy, with Recipient on July 13, 2015. Id. at 80-82. A new service coordinator,
Lori Graybill, reviewed these policies with Recipient on July 8, 2016. Id. at 83-86.
       From March 29, 2016 through April 15, 2016, Recipient was hospitalized for
sepsis and cellulitis.4 Notes of Testimony (N.T.), 9/13/18, at 49; Ex. C-3. During
this period, Ms. Fabie submitted timesheets for the weeks of March 27, 2016 through
April 23, 2016, requesting payment for services she rendered to Recipient. Id., Ex.
A-1. By letter dated June 24, 2016, Ms. Graybill reported to DHS’ Medical
Assistance Provider Compliance Hotline Ms. Fabie’s submission of timesheets for
services rendered during Recipient’s 2016 hospitalization. N.T., 9/13/18, Ex. C-3.
Thereafter, the Pennsylvania Office of Attorney General (OAG), Medicaid Fraud
Control Section, sought from SCSCPA copies of Recipient’s records related to
services rendered, and reimbursement for same, for the period of January 1, 2015
through April 30, 2016. Id.
       In a letter to Ms. Graybill dated July 22, 2016, Ms. Fabie related the services
she performed for Recipient in March and April 2016 during his period of
hospitalization. Id., Ex. C-2. These services included transporting Recipient to and

       4
         Recipient spent approximately one week in York Hospital and nine days in Health South,
a rehabilitation facility. N.T., 9/13/18, Ex. C-2.


                                              3
from the hospital, cleaning Recipient’s home and medical equipment, washing his
clothing, and meeting with medical providers to discuss Recipient’s treatment plan.
Id. Ms. Fabie also received training in wound care and bandaging. Id.
       On September 15, 2017, Recipient received a notice from SCSCPA that,
having approved Ms. Fabie’s timesheets for periods during which he was
hospitalized, he was terminated from the Participant-Directed Model of services and
restricted to the Agency-Directed Model. C.R. at 10. Recipient timely appealed this
decision. Id. at 12-13. Following a hearing at which neither DHS nor SCSCPA
appeared, the ALJ sustained Recipient’s appeal. Id. at 35. The BHA affirmed the
ALJ.       Id. at 26.   The Secretary granted SCSCPA’s subsequent request for
reconsideration and remanded the matter to BHA for a hearing on the merits. Id. at
43.
       The ALJ conducted a hearing on September 13, 2018, at which Ms. Fabie
appeared on behalf of Recipient.5 Ms. Jacobs testified on behalf of DHS/ SCSCPA.
       Ms. Jacobs testified that Recipient’s participation in the Participant-Directed
Model of services was terminated following the initiation of criminal charges against
Ms. Fabie by the OAG. N.T., 9/13/18, at 19. SCSCPA deemed the termination
necessary to help ensure Recipient’s health and safety until the fraud charges were
resolved.6 Id. at 31. Ms. Jacobs asserted she provided Ms. Fabie with several copies


       5
         Recipient did not appear. Recipient’s counsel requested a continuance, to which SCSCPA
objected. N.T., 9/13/18, at 6. The ALJ denied the continuance request as SCSCPA lodged an
objection and the matter had already been continued several times. Id. at 6-7.

       6
         By letter dated June 15, 2018, the York County District Attorney’s Office notified Ms.
Fabie she was eligible for the Accelerated Rehabilitative Disposition (ARD) program. N.T.,
9/13/18, Ex. A-2. ARD is a program whereby, upon successful completion of the program’s
requirements, an offender’s record may be expunged. See Pa.R.Crim.P., Chapter 3. The record
does not reflect whether Ms. Fabie successfully completed the ARD program.


                                              4
of SCSCPA’s participant handbook. Id. at 64-65. Participants in the Waiver
Program receive a copy of the participant handbook at each annual reassessment
visit, along with a packet of information explaining the participant’s responsibilities
under the Waiver Program. Id. at 66-67.
      Ms. Jacobs emphasized that Recipient is the Waiver Program participant, not
Ms. Fabie. Id. at 68. As such, Recipient must be deemed capable of employing his
own DCWs. Id. at 69. If Recipient is not capable of overseeing his DCW, he would
be restricted to using the Agency-Directed Model of services. Id.
      Ms. Fabie denied receiving any copies of SCSCPA’s participant handbook
and testified she was unaware she could not submit timesheets for services provided
during Recipient’s 2016 hospitalization. Id. at 47-48. She had no intent to defraud
SCSCPA or the state. Id. at 60. Ms. Fabie submitted timesheets for hours worked
during Recipient’s 2016 hospitalization as she was with him “non-stop.” Id. at 50-
51. Duties Ms. Fabie undertook included preparing Recipient for transport to York
Hospital and assisting with his admission, selecting Recipient’s hospital meals for
him, and assisting with Recipient’s wound care. Id. at 52. Following Recipient’s
discharge from York Hospital, Ms. Fabie transported him to Health South. Id. at 53.
Throughout his admission at Health South, Ms. Fabie provided Recipient food and
water, as well as his continuous positive airway pressure (CPAP) machine, as Health
South did not provide durable medical equipment. Id. Ms. Fabie took responsibility
for cleaning and maintaining Recipient’s CPAP machine. Id. at 54. Ms. Fabie
related that Recipient did not want another DCW and she would like his HCBS
reinstated. Id. at 59.
      The ALJ issued her adjudication denying Recipient’s appeal on December 6,
2018. C.R. at 153-66. The ALJ found that, under the Participant-Directed Model of



                                          5
services, Recipient was responsible for hiring, firing, scheduling, training, and
supervising his DCWs. Finding of Fact (F.F.) No. 6. Recipient was further
responsible for reviewing and approving DCW timesheets. Id. Recipient approved
timesheets Ms. Fabie submitted that covered periods during which Recipient was
hospitalized. F.F. Nos. 8-10. SCSCPA terminated Recipient’s participation in the
Participant-Directed Model of services on the basis that he approved Ms. Fabie’s
timesheets for hours worked during his period of hospitalization. F.F. No. 17.
       The ALJ found credible the testimony of Ms. Jacobs that a participant’s rights
and responsibilities are reviewed during the annual reassessment visit, and she
reviewed these rights and responsibilities with Recipient in 2014 and 2015. F.F.
Nos. 44-45. Recipient’s signature acknowledged his receipt of the participant
handbook and information on his rights and responsibilities under the Waiver
Program. F.F. No. 46. Ms. Fabie admitted she submitted timesheets for periods that
included Recipient’s 2016 hospitalization. F.F. No. 47. Recipient did not provide
evidence which explained why he approved Ms. Fabie’s timesheets or which
demonstrated he was able to self-direct his services. F.F. No. 48. Based on her
findings, the ALJ concluded that DHS proved by substantial evidence Recipient
approved timesheets that overlapped his hospitalization in violation of SCSCPA
policy, thus demonstrating Recipient’s inability to self-direct his services. C.R. at
165.
       BHA affirmed the ALJ on December 7, 2018. C.R. at 152. Recipient filed an
application for reconsideration with the Secretary on December 24, 2018, seeking
an opportunity to testify and explain his understanding of the relevant SCSCPA
policies.   Id. at 168-69.     The Secretary denied Recipient’s application for
reconsideration on January 4, 2019. Id. at 172. Recipient, no longer represented by



                                          6
counsel, filed a pro se communication with this Court on February 13, 2019,
requesting this Court consider his appeal nunc pro tunc.7 By order dated March 21,
2019, this Court directed the parties to address the timeliness of Recipient’s appeal
in their principal briefs on the merits.
                                             II. Issues
       On appeal,8 Recipient argues BHA erred in terminating his right to direct his
own services as the evidence does not support a finding that he failed to consistently
adhere to the policies of the Waiver Program and the BHA should have considered
less restrictive alternatives to termination from the Waiver Program. Recipient
further argues the BHA’s denial of his continuance request deprived him of the
opportunity to be heard.
       As to the timeliness of his appeal, Recipient argues this Court should consider
the merits of his appeal given his reasonable reliance on his previous attorney to file
a timely notice of appeal, Recipient’s significant physical disabilities, the short
duration of his delay in filing the appeal, the lack of prejudice to DHS, and the
interests of judicial economy.
                                           III. Analysis
       As a threshold matter, we must address the timeliness of Recipient’s appeal
and whether he has demonstrated a right to nunc pro tunc relief. Pursuant to Rule

       7
         Recipient asserts in his pro se communication that his attorney responded late and DHS’s
phone lines were inoperable.

       8
         While Recipient correctly cites this Court's standard of review for appeals from an order
of the BHA, Recipient attached the Secretary’s January 4, 2019 order denying reconsideration to
his February 13, 2019 pro se communication. In an appeal from a denial by the Secretary of an
application for reconsideration, we are limited to considering whether the Secretary abused her
discretion. B.B. v. Dep't of Pub. Welfare, 118 A.3d 482, 485 (Pa. Cmwlth. 2015). An abuse of
discretion occurs where the decision is manifestly unreasonable, where the law is not applied, or
where the action is the result of partiality, prejudice, bias, or ill will. Payne v. Workers' Comp.
Appeal Bd. (Elwyn, Inc.), 928 A.2d 377, 379 (Pa. Cmwlth. 2007).

                                                7
1512(a)(1) of the Pennsylvania Rules of Appellate Procedure, Recipient should have
filed his appeal within 30 days after entry of the Secretary’s order. Pa.R.A.P.
1512(a)(1). There is no dispute the Secretary entered her order on January 4, 2019,
and Recipient filed his appeal with this Court more than 30 days later, on February
13, 2019.
      It is well established that the failure to timely appeal an administrative
agency's action is a jurisdictional defect and the time for taking an appeal cannot be
extended as a matter of grace or mere indulgence. H.D. v. Dep’t of Pub. Welfare,
751 A.2d 1216, 1219 (Pa. Cmwlth. 2000). An appeal nunc pro tunc may be allowed
where a delay in filing the appeal was caused by extraordinary circumstances
involving fraud or some breakdown in the administrative process.             Bass v.
Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979). An appeal nunc pro tunc is also
permitted where an appellant’s notice of appeal is filed late due to non-negligent
circumstances related to the appellant or his counsel and where the appellant filed
the notice of appeal shortly after the expiration date and the appellee was not
prejudiced by the delay. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001). A delay
caused by the negligence or neglect of an attorney does not provide a basis for
granting an appeal nunc pro tunc. J.C. v. Dep’t of Pub. Welfare, 720 A.2d 193, 197
(Pa. Cmwlth. 1998).
      Here, Recipient has not argued his delay in appealing the Secretary’s order
was caused by circumstances involving fraud or a breakdown in the administrative
process. Rather, Recipient asserts he was unaware his appeal was untimely until




                                          8
June 19, 2019, when he reviewed DHS’ appellate brief.9 Because the subject matter
of the present appeal lay outside his former counsel’s primary area of practice,
Recipient sought the services of another attorney. Nevertheless, Recipient asserts
he was unaware his former counsel neglected to appeal on his behalf. Given his
physical disabilities, Recipient suggests his reliance on former counsel to file the
notice of appeal was reasonable, his appeal was received only nine days late, and
DHS will suffer no prejudice should this Court grant Recipient nunc pro tunc relief.10
       In support of his assertion that he should be granted nunc pro tunc relief,
Recipient cites our Supreme Court’s decision in Bass, in which the Court held that
a late appeal may be permitted, where its untimeliness is the result of the non-
negligent conduct of the appellant's attorney or the attorney’s staff. The Bass
appellant's appeal was ready for filing a week before the appeal period expired, but
was untimely filed because of an unforeseen illness of the attorney’s secretary. The
Supreme Court determined that neither the attorney nor his secretary acted
negligently in failing to timely file the appeal. In such cases, the Supreme Court
reasoned, a client should not suffer as a result of his attorney’s non-negligent failure
to file a timely appeal. However, the negligence of an appellant, or an appellant's
counsel, or an agent of appellant's counsel, was not considered a sufficient excuse
for the failure to file a timely appeal. Bass, 401 A.2d at 1135.


       9
        Recipient did not address the timeliness of his appeal in his principal brief, despite this
Court’s March 21, 2019 order directing him to do so. The issues discussed herein were raised in
Recipient’s reply brief.

       10
          Recipient posits an additional argument that this Court’s consideration of the merits of
his appeal will serve the interests of judicial economy, as he will otherwise be forced to reapply
for HCBS, the denial of which would constitute a new adverse determination from which Recipient
would appeal. We decline to address this argument, as judicial economy is not one of the bases
upon which we may grant nunc pro tunc relief.


                                                9
       Problematically, Recipient fails to explain how his failure, or that of his
former counsel, to file a timely appeal was non-negligent. While Recipient’s former
counsel filed Recipient’s October 3, 2017 appeal with the BHA, Recipient
acknowledges he sought the services of a new attorney for his appeal to this Court
as the subject matter lay outside his former counsel’s primary practice area. As such,
Recipient should have confirmed an appeal was filed by former counsel or taken the
initiative to file himself prior to the expiration of the 30-day appeal period. Clearly,
nothing prevented Recipient from filing a pro se communication with this Court
prior to February 13, 2019.11
       As Recipient has not established his failure to file a timely appeal was caused
by non-negligent circumstances, we are constrained to conclude his appeal was
untimely and this Court lacks jurisdiction.12 Accordingly, Recipient’s petition for
review is quashed as untimely.


                                               __________________________________
                                               ELLEN CEISLER, Judge




       11
           Recipient’s assertion that he was not aware of the untimely filing until June 19, 2019, is
less than compelling as his pro se appeal filed approximately four months earlier specifically
requested nunc pro tunc relief, and in light of this Court’s March 21, 2019 order directing the
parties to address the issue of timeliness.

       12
         Even were we to grant Recipient’s request for nunc pro tunc relief, he has not asserted
any circumstances that exhibit the Secretary’s denial of reconsideration was manifestly
unreasonable or exhibited partiality, prejudice, bias, or ill will. Recipient’s principal brief instead
focuses on perceived errors of the BHA. As Recipient did not appeal the BHA’s order dated
December 7, 2018, those alleged errors are not before this Court.


                                                 10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin Fabie,                         :
                   Petitioner         :
                                      :
      v.                              : No. 256 C.D. 2019
                                      :
Department of Human Services,         :
                 Respondent           :

                                   ORDER


      AND NOW, this 13th day of January, 2020, the petition for review filed by
Justin Fabie is hereby quashed as untimely.




                                      __________________________________
                                      ELLEN CEISLER, Judge
