Opinion

H. Vesely through Trinity Living Center, L.P. v. DPW

Court
Commonwealth Court of Pennsylvania
Filed
Sep 25, 2015
Status
Unpublished
On the bench
Covey, J.
Cited by
0 cases
Authority
More cited than 39.9%

The opinion

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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