          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

DEOIDE LEA CUNNINGHAM,                   )
                                         )       No. 73713-9-1
                     Appellant,          )
                                         )       ORDER DENYING APPELLANT'S
                     v.                  )       MOTION FOR RECONSIDERATION,
                                         )       GRANTING RESPONDENT'S
STATE OF WASHINGTON,                     )       MOTION FOR RECONSIDERATION
DEPARTMENT OF SOCIAL AND                 )       AND WITHDRAWING AND
HEALTH SERVICES,                         )       SUBSTITUTING OPINION
                                         )
                     Respondent.         )
                                         )

       Appellant, Deoide Cunningham, and respondent, Department of Social and

Health Services, have filed motions for reconsideration of the opinion filed in the above

matter on July 31, 2017.1 A majority of the panel has decided that appellant's motion

should be denied and respondent's motion should be granted. The opinion filed on July

31, 2017, shall be withdrawn and a substitute opinion shall be filed. Now, therefore, it is

hereby




        1 On August 3, 2017, appellant filed a motion for extension of time to "respond to
latest ruling," which this court interpreted as a request for additional time to seek
reconsideration of this court's opinion. On August 21, 2017, appellant filed a 239-page
motion for reconsideration as well as a separate 9-page document appearing to request
the consideration of supplemental evidence, both of which were considered by this
court. Accordingly, appellant's request for additional time appears to be moot.
No. 73713-9-1/2


          ORDERED that the appellant's motion for reconsideration is denied. It is further

          ORDERED that the respondent's motion for reconsideration is granted. And it is

further

          ORDERED that the opinion filed on July 31, 2017, shall be withdrawn, and a new

opinion shall be filed.




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DEPARTMENT OF SOCIAL AND                 )       UNPUBLISHED OPINION
HEALTH SERVICES,                         )
                                         )       FILED: October 9, 2017
                     Respondent.


       BECKER, J. —When Deoide Cunningham failed to appear for an

administrative hearing, an administrative law judge entered an order of dismissal

in favor of the Department of Social and Health Services. The administrative law

judge subsequently denied Cunningham's motion to vacate the dismissal for

good cause. Cunningham does not challenge the administrative law judge's

finding that she lacked good cause but rather contends that the administrative

law judge erred in failing to consider certain evidence. We find no error in the

administrative law judge's findings regarding good cause and affirm.1



       1 Respondent sought reconsideration of this court's prior opinion, filed July
31, 2017, based on authority not cited in its original brief. In the interests of
justice, we exercised our authority to consider this authority and amended our
opinion. RAP 12.2, 12.4.
No. 73713-9-1/2


       Cunningham has previously received services and financial benefits from

the departrnent as a client of the Development Disabilities Administration. On

March 4, 2013, the department notified Cunningham in writing that it was

terminating her eligibility for these services effective April 1, 2013, because

Cunningham was no longer living in Washington. The notice informed

Cunningham that she had until June 4, 2013, to appeal the termination but that

she was required to file her appeal by March 31, 2013, in order to continue

receiving services pending the appeal.

       Cunningham, through her representative, Karl Olson, filed a notice of

appeal and requested an administrative hearing with the Office of Administrative

Hearings.2 The record shows that Cunningham faxed the notice of appeal to the

Office of Administrative Hearings on March 7, 2013. However, it was misfiled in

one of Cunningham's other open cases. Cunningham faxed the notice of appeal

a second time on June 3, 2013. An administrative hearing was scheduled for

May 20, 2014, at 9:00 a.m. The Office of Administrative Hearings issued an

order requiring Cunningham and any of her witnesses to appear in person "due

to significant issues of credibility."

       At a continuance hearing on December 17, 2013, Cunningham requested

to continue receiving services pending the appeal. On January 9, 2014, an

administrative law judge issued an order denying continued benefits because




       2 Olson   is Cunningham's caregiver and significant other.
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No. 73713-9-1/3


Cunningham had not appealed the eligibility termination in time. Cunningham did

not specifically appeal this order.

       Neither Cunningham nor Olson appeared at the May 20 hearing. Nor did

they contact the court or otherwise explain their absence. The administrative law

judge dismissed Cunningham's appeal.

       Cunningham moved to vacate the dismissal, claiming that she had good

cause to miss the hearing. Cunningham stated that she had a medical

appointment on May 20 and her primary care physician "has asked for all

hearings to be continued until issues are identified and therapy initiated." In

support of her motion, Cunningham submitted four letters from Dr. Seth Cowan,

a naturopathic physician. The first, dated June 10, 2014, stated:

       Ms. Cunningham has multiple serious medical problems. Stress
       related to DSHS hearings may exacerbate her conditions.
       Therefore, please allow her power of attorney, Karl Olson, to
       represent her for related hearings, including via telephone calls and
       in-person interviews.

The second, also dated June 10, 2014, stated:

       Please excuse Mr. Olson from his appointment on 05/20/14. He
       was being seen in my office that day.

The third, dated July 10, 2014, stated:

       Please provide special accommodations for Deoide Cunningham
       by contacting her primary care giver and representative, Karl Olson
       prior to scheduling further meetings or hearings due to her complex
       medical situation. If possible, please conduct meeting and hearings
       via phone. The best time for Ms. Cunningham and Mr. Olson are
       mid-day between 11 am and 1 pm due to care giving routines and
       typical scheduled therapy appointments.




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No. 73713-9-1/4


The fourth, dated August 12, 2014, stated:

      Ms. Cunningham has a complex medical history including seizure
      disorder, severe constipation and chronic pain. It is my
      understanding that she required an urgent medical intervention on
      May 20, 2014, which required her to miss a scheduled DSHS
      hearing. Please consider reinstating her hearing.

      In response, the department submitted an affidavit in which Dr. Cowan

stated that Olson's May 20 appointment had been at 1:40 p.m., several hours

after the 9:00 a.m. hearing, and was for the purpose of discussing Cunningham's

condition, not for an emergent medical matter. Dr. Cowan also stated that

Cunningham had not been a patient of his on May 20 and he had not even met

her until June 6. Dr. Cowan stated that he was "still unaware of the scope and

severity of Ms. Cunningham's purported medical conditions, and that the

statement he provided to OAH regarding Ms. Cunningham's condition was at Mr.

Olson's request and was based solely on information provided by Mr. Olson."

      An administrative law judge denied the motion to vacate the dismissal.

The administrative law judge found that Dr. Cowan did not have any personal

knowledge of the contents of his statements and that the letters were insufficient

to establish "a link between Ms. Cunningham and Mr. Olson's medical conditions

and their inability to attend a hearing." The administrative law judge concluded

that Cunningham had not shown good cause for failing to attend the May 20

hearing.

      As to Cunningham's continued benefits, the administrative law judge

found that Cunningham had not filed her notice of appeal until June 3, 2013, and



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No. 73713-9-1/5


was thus not entitled to continued benefits. The administrative law judge further

found:

         4.10 The motion for a continuance was therefore heard on
         December 17, 2013.... At the same time, Mr. Olson raised, for the
         first time, the issue of continued benefits under docket number 06-
         2013-A-0805 claiming Ms. Cunningham had timely requested a
         hearing by fax on March 7, 2013. The available evidence was
         reviewed, argument taken, and Mr. Olson was given additional time
         to provide more evidence of his alleged timely fax.

         4.11 On December 23, 2013, Mr. Olson submitted additional
         documentation by certified mail, return receipt requested. (A letter
         from the purported March 7, 2013 fax sender and another copy of
         the purported fax transmission.) On January 6, 2014, DSHS filed a
         response. On January 9, 2014, an order denying continued
         benefits was issued.

In a footnote, the administrative law judge noted:

         More importantly, even if continued benefits had been granted
         based on the purported timely request, they would have terminated,
         pursuant to WAC 388- 825-150 (11)(c), when Ms. Cunningham
         failed to appear for hearing on May 20, 2014. There is no right to
         resume continued benefits pending hearing when a petition to
         vacate is filed. Even if the letters or other evidence was persuasive
         that the ruling denying continued benefits was in error, there is no
         legal basis to grant continued benefits at this point. He may appeal
         that issue (as he had earlier been instructed) if and when he
         appeals this initial decision.

         Cunningham filed a petition for review with the department's Board of

Appeals. A review judge adopted the administrative law judge's findings that

Cunningham had not established good cause for her failure to appear at the

administrative hearing. The review judge declined to consider Cunningham's

challenge to the denial of continued benefits, finding that Cunningham had not

sought review of the January 9 order denying continued benefits.



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No. 73713-9-1/6


      Cunningham sought review in Skagit County Superior Court, which also

affirmed the administrative law judge's decision. Cunningham appeals.

       In reviewing an administrative action, we sit in the same position as the

superior court, applying the standards of the Administrative Procedure Act,

chapter 34.05 RCW,directly to the record before the agency. Brighton v. Dep't

of Transp., 109 Wn. App. 855, 861-62, 38 P.3d 344 (2001). To the extent they

modify or replace the administrative law judge's findings of fact and conclusions

of law, a review judge's findings and conclusions are relevant on appeal. Tapper

v. Emp't Sec. Dep't, 122 Wn.2d 397, 406, 858 P.2d 494(1993). The party

challenging an agency's action bears the burden of demonstrating the invalidity

of the decision. Brighton, 109 Wn. App. at 862 (citing RCW 34.05.570(1)(a)).

       We review an agency's factual findings to determine whether they are

supported by substantial evidence. Port of Seattle v. Pollution Control Hrgs Bd.,

151 Wn.2d 568, 588, 90 P.3d 659 (2004). Substantial evidence is a sufficient

quantity of evidence to persuade a fair-minded person of the truth or correctness

of the agency action. Port of Seattle, 151 Wn.2d at 588. We will overturn an

agency's findings only if they are "clearly erroneous" and we are "'definitely and

firmly convinced that a mistake has been made." Port of Seattle, 151 Wn.2d at

588, quoting Buechel v. Dep't of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910

(1994). We view the "evidence and reasonable inferences therefrom in the light

most favorable to the party who prevailed at the administrative proceeding

below." Kirby v. Empit Sec. Dep't, 185 Wn. App. 706, 713, 342 P.3d 1151

(2014), review denied, 183 Wn.2d 1010 (2015).

                                         6
No. 73713-9-1/7


      Cunningham primarily challenges the administrative law judge's decision

denying continued benefits pending the appeal. Cunningham contends that the

administrative law judge violated her right to due process and her right to present

a complete defense when it "concealed" or "destroyed" the notice of appeal she

faxed on March 7.

      The department acknowledges that Cunningham timely filed her notice of

appeal to be entitled to continued benefits. See WAG 388-825-130(3)(individual

must request administrative hearing within 10 days in order to maintain current

services during the appeal process). Because the notice of appeal had been

misfiled, the administrative law judge was not aware of it. Therefore, the

administrative law judge's finding that Cunningham was not entitled to continued

benefits because of her untimely filing was erroneous.3

       However, because we affirm the dismissal of Cunningham's appeal,

thereby upholding the department's termination of her benefits, the erroneous

finding was harmless. Even if Cunningham had received benefits during the

pendency of her appeal, she would not be entitled to them now, as Medicaid

beneficiaries are not entitled to keep benefits received pending a hearing when


       3 The department contends that the    issue of continued benefits is not
properly before us   on appeal  because  Cunningham    did not timely appeal the
January 9 order. But it is not clear that the January 9 order was an appealable
order. The order does not provide Cunningham with notice of her right to appeal.
See WAG XXX-XX-XXXX(9) and (10)(requiring an administrative law judge to
include in its decision "how to request changes in the decision and the deadlines
for requesting them" and "the date the decision becomes final according to WAG
XXX-XX-XXXX). Furthermore, the administrative law judge's initial order clearly
stated that Cunningham could appeal the denial of continued benefits as part of
her appeal of the initial order.
No. 73713-9-1/8


the agency's original action to terminate them is sustained. See 42 C.F.R.§

431.230(b)("If the agency's action is sustained by the hearing decision, the

agency may institute recovery procedures against the applicant or beneficiary to

recoup the cost of any services furnished the beneficiary.").

       Cunningham also contends that the administrative law judge "concealed"

or "destroyed" evidence that the department had withdrawn the March 4

notification in a different proceeding. But, even based on the documents

Cunningham has provided from this unrelated proceeding, Cunningham's claim

has no basis in fact.

       Finally, Cunningham contends that the review judge failed to consider two

additional letters that she provided in support of her motion to vacate. The first,

dated May 5, 2014, is from Kenneth Dunning, a licensed mental health

counselor. According to Dunning, who has reportedly provided counseling for

Olson since 2001, Olson has "complained that he is having difficulty maintaining

a level of mental acuity over prolonged periods" and "believes this difficulty

impairs his ability to deal with matters involving intense concentration." The

second, dated May 16, 2014, is from Mary Stone, a licensed mental health

counselor. According to Stone, who has seen both Cunningham and Olson for

counseling since February 2007, Cunningham "is unable to represent herself due

to a seizure disorder and other medical conditions" and Olson "has difficulty with

concentration and reasoning, and would not be able to adequately. .. represent




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No. 73713-9-1/9


himself or Ms. Cunningham at this time." But Cunningham fails to establish that

these letters, attached as an appendix to her opening brief, were actually

provided to the administrative law judge. Nor does Cunningham articulate how

either of these letters would be relevant to the question of whether she was

unable to appear in person on May 20.

       We affirm the superior court's order affirming the administrative law




                                                                    A.
judge's decision.


                                             c3ec_,,e_AR
WE CONCUR:



   ci-2).e.1




      4 Cunningham also included copies of identical letters written by Stone,
dated February 16, 2014, and December 26, 2013.
                                         9
