D. Coudriet v. PA Health Insurance Exchange Auth. d/b/a Pennie

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Coudriet, :

:

Petitioner :

:

v. : No. 1334 C.D. 2022

: Submitted: May 7, 2024

Pennsylvania Health Insurance :

Exchange Authority d/b/a Pennie, :

:

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: June 17, 2024

Daniel Coudriet (Applicant) petitions for review of the order of

Presiding Officer Thomas Blackburn (Dismissal Order) granting the oral motion of

the Pennsylvania Health Insurance Exchange Authority d/b/a Pennie (Pennie) to

dismiss Applicant’s Marketplace Eligibility Appeal pursuant to the Health Insurance

Markets Oversight Act (Act).1 We affirm.

1

40 Pa. C.S. §§9101 to 9703. As it has been recently explained:

Effective July 2, 2019, a series of statutes designed to provide health

insurance marketplace oversight, 40 Pa. C.S. §§9101 to 9703,

became effective. The [G]eneral [A]ssembly has declared that it is

(Footnote continued on next page…)

On May 23, 2022, Applicant filed a Marketplace Eligibility Appeal of

Pennie’s May 2022 determination regarding his eligibility for a tax credit under the

Act. See Certified Record (CR) at 2-47. On September 1, 2022, the Presiding

Officer conducted a telephonic hearing on Applicant’s appeal during which the

following was stated on the record:

[PRESIDING OFFICER]: All right.

As I indicated a moment ago, [Applicant] is not

present with us this afternoon and has not called in.

On July 1st of 2022, my office issued a scheduling

order for a telephonic hearing in this matter. That notice

was mailed to [Applicant] at 1388 Million Dollar Highway

in Kersey, PA 15846. And I’ll note that the address on the

appeal form that had been submitted for [Applicant] was

1388 Million Dollar Highway, Kersey, PA 15846, the

necessary to maintain the Commonwealth’s sovereignty over the

regulation of health insurance in Pennsylvania as permitted by

federal law, including the federal acts known as the Patient

Protection and Affordable Care Act[,] and that these provisions are

intended to meet these requirements while retaining the

Commonwealth’s authority to regulate health insurance in

Pennsylvania (40 Pa. C.S. §9102(3)). The general provisions of this

statutory scheme, 40 Pa. C.S. §§9101 to 9103, concern the scope,

purpose, and applicable definitional provisions. [Pennie] is

established by these statutes, and provision is made for the powers,

duties, operations, and limitations of such authority (40 Pa. C.S.

§§9301 to 9314).

14 Summ. Pa. Jur.2d Insurance §1:2 (2d ed. 2024); see also Schneider v. Elk County Board of

Commissioners, 189 A.3d 1120, 1124 n.9 (Pa. Cmwlth. 2018) (“What is customarily referred to

as the “Affordable Care Act” consists of two pieces of legislation: the Patient Protection and

Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in

scattered titles of the U.S.C.) and the Health Care and Education Reconciliation Act of 2010,

Pub. L. No. 111-152, 124 Stat. 1029 (2010) (codified as amended in scattered titles of the

U.S.C.).”).

2

same address. That mailing has not been returned to us by

the postal authorities.

The notice of hearing indicated the hearing would

be held by telephone on September 1st of 2022, beginning

at 2:00 p.m. It’s now 2:18 p.m. on September 1st, 2022.

The notice indicated that to participate the parties

must dial 267-332-8737 and use access code 341165573.

It is my understanding that that is how not only [Pennie’s

Counsel,] but also our court reporter and Pennie’s witness

who is present with us this afternoon had been able to

access the hearing.

So, it does not appear to me that there’s any

technological reason why [Applicant] could not have

participated in the hearing this afternoon, but I guess I

should also note on the record that in addition to not

receiving the notice of hearing back in the mail, my office

has not received any other contacts for [Applicant]. No

request for a continuance or any other thing that might

suggest whether or not he would be able to participate in

the hearing this afternoon.

[Counsel], do you have anything that could add to

that?

[PENNIE’S COUNSEL]: Yes.

I spoke to [Applicant] this morning at about 9:39

a.m. I called him.

We spoke briefly. I reminded him of the hearing

today at 2:00 p.m. among other things, but unfortunately

it appears that he is not here this afternoon for the hearing.

In addition, as we’ve been waiting, I’ve checked

Pennie’s internal customer messaging systems to see if

there’s any recent contact from [Applicant] regarding his

whereabouts, why he might be running late or why he

might be unable to attend. And there’s no information in

there regarding that.

3

In addition, I checked Pennie’s internal appeals

inbox to see if there was any communication from

[Applicant] about his whereabouts and, again, there’s no

information there.

Pursuant to [the federal regulations at] 45 C.F.R.

Section 155.530[(a)](2)[2] the appeals entity must dismiss

an appeal if the [a]ppellant fails to appear at a scheduled

hearing without good cause.

Accordingly, we would move to dismiss this appeal.

[PRESIDING OFFICER]: Thank you, [Counsel].

Based on that recitation of facts, I think it’s

appropriate to go forward in having the hearing this

afternoon for the limited purpose that it is which is really

just to put all [of] that on the record. And also, it appears

appropriate to grant Pennie’s motion to dismiss in

accordance with the federal regulations, which by the way

do provide that if someone whose appeal has been

dismissed properly speaks up and has good cause for their

failure to attend, that the dismissal will be set aside, and

they’ll be able again [to] pursue the appeal.[3]

So, in light of all that, I will be issuing an order

granting Pennie’s motion to dismiss.

CR at 62-65.

2

45 C.F.R. §155.530(a)(2). Section 155.530(a)(2) of the federal regulations states: “The

appeals entity must dismiss an appeal if the appellant . . . [f]ails to appear at a scheduled hearing

without good cause[.]” Id. (emphasis added). Section 9701(a) of the Act authorizes the

Pennsylvania Insurance Department and Pennie to “promulgate regulations as may be necessary

and appropriate to carry out the provisions of this part.” 40 Pa. C.S. §9701(a). However, Section

9313(1) of the Act provides: “Until [Pennie] promulgates regulations, [Pennie] shall operate the

exchange pursuant to . . . any applicable [f]ederal rules, regulations, or guidance[.]” 40 Pa. C.S.

§9313(1).

3

See 45 C.F.R. §155.530(d)(1) (“The appeals entity must . . . [v]acate a dismissal and

proceed with the appeal if the appellant makes a written request within 30 days of the date of the

notice of dismissal showing good cause why the dismissal should be vacated[.]”) (emphasis

added).

4

As a result, on September 2, 2022, the Presiding Officer issued the

Dismissal Order granting Pennie’s oral motion to dismiss, which states, in relevant

part:

NOTICE OF DISMISSAL

Your Marketplace Eligibility Appeal has been dismissed

due to your failure to appear telephonically, without good

cause, at a scheduled hearing on September 1, 2022, at

2:00 p.m. As a result, Pennie’s previous eligibility

determination will remain in effect.

If you wish to have the Dismissal Order vacated, and your

appeal reinstated, you must, within 30 days of the date of

this Notice and Order of Dismissal, provide a written

explanation as to why good cause exists to vacate the

Dismissal Order. IF YOU DO NOT PROVIDE A

WRITTEN EXPLANATION AS TO WHY GOOD

CAUSE EXISTS TO VACATE THE DISMISSAL

ORDER, THE ORDER WILL BECOME FINAL. Your

written explanation, if you choose to provide one, should

be emailed to the [P]residing [O]fficer at

tblackburn@pa.gov and a copy should also be emailed to

Pennie at appeals@pennie.com.

CR at 71 (emphasis in original). Rather than asking Pennie to vacate the Dismissal

Order, as instructed, on September 20, 2022, Applicant filed the instant petition for

review in this Court.

On appeal,4 Applicant argues the merits of his Marketplace Eligibility

Appeal of Pennie’s determination regarding his eligibility for a tax credit under the

Act, and outlines the various difficulties that he has had with his computer and

4

Pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704, our review

is limited to a determination of whether constitutional rights were violated, and whether the

decision is in accordance with law and supported by substantial evidence. See also Section 9302(a)

of the Act, 40 Pa. C.S. §9302(a) (“[Pennie] is established as a State-affiliated entity. The powers

and duties of the exchange authority shall be vested in and exercised by a board . . . . Individuals

employed by [Pennie] shall be employees of the Commonwealth.”).

5

submitting the appropriate documents to Pennie regarding his eligibility. However,

Applicant has failed to preserve any appellate issues for our review regarding the

merits of his Marketplace Eligibility Appeal by failing to prosecute his appeal at the

telephonic hearing before the Presiding Officer, and by failing to ask Pennie to

vacate the Dismissal Order based on good cause for his failure to attend the

telephonic hearing.5 See, e.g., Pa.R.A.P. 1551(a) (“Only questions raised before the

government unit shall be heard or considered, except: (1) Questions involving the

validity of a statute[;] (2) Questions involving the jurisdiction of the government unit

over the subject matter of the adjudication[; and] (3) Questions that the court is

satisfied the petitioner could not by the exercise of due diligence have raised before

the government unit.”); Singer v. Bureau of Professional and Occupational Affairs,

State Board of Psychology, 633 A.2d 246, 248 (Pa. Cmwlth. 1993) (“Relying upon

this rule, this [C]ourt has previously held that commingling claims may be waived

if they are not raised before the administrative board. Dowler v. Public School

Employes’ Retirement Board, [620 A.2d 639 (Pa. Cmwlth. 1993)].”); see also Diskin

Enterprises, Inc. v. State Board of Vehicle Manufacturers, Dealers & Salespersons

(Pa. Cmwlth., No. 2389 C.D. 2003, filed December 7, 2004), slip op. at 6 n.8

(“Generally, this court will not consider any question that was not raised before the

government unit unless (1) the question involves the validity of a statute, (2) the

question involves the government unit’s jurisdiction over the subject matter of the

adjudication, or (3) this court is satisfied that the petitioner could not, by the exercise

5

See, e.g., D&R Sports, Inc. v. Commonwealth, 233 A.3d 1009, 1013 n.5 (Pa. Cmwlth.

2020) (“Although the Commonwealth did not raise the waiver issue, this Court has held that an

‘appellate court may sua sponte refuse to address an issue raised on appeal that was not raised and

preserved below[.]’ Siegfried v. Borough of Wilson, 695 A.2d 892, 894 (Pa. Cmwlth. 1997).”).

6

of due diligence, have raised the question before the government unit. Pa.R.A.P.

1551(a); [Singer].”).

Accordingly, the Presiding Officer’s Dismissal Order is affirmed.

MICHAEL H. WOJCIK, Judge

7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Coudriet, :

:

Petitioner :

:

v. : No. 1334 C.D. 2022

:

Pennsylvania Health Insurance :

Exchange Authority d/b/a Pennie, :

:

Respondent :

ORDER

AND NOW, this 17th day of June, 2024, the decision of the

Pennsylvania Health Insurance Exchange Authority d/b/a Pennie dated September

2, 2022, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge