The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Knight, :
Petitioner :
: Nos. 1105 & 1106 C.D. 2020
v. :
: Submitted: February 18, 2022
Department of Human Services, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 14, 2023
In these consolidated matters, Kevin Knight (Knight) petitions for the
review of two final administrative action orders issued by the Department of Human
Services (DHS), Bureau of Hearings and Appeals (BHA), on October 7, 2020. Both
orders affirmed the dismissal of Knight’s nunc pro tunc appeals of two Notices of
Denial for Medical Assistance Long Term Care (MA-LTC) benefits for his mother,
O.W., issued by the Bedford County Assistance Office (CAO) on March 28, 2019,
and October 9, 2019.1 The BHA’s final administrative orders affirmed the
1
Appeal at 1105 C.D. 2020 pertains to the March 28, 2019 denial notice and decision.
Appeal at 1106 C.D. 2020 pertains to the October 9, 2019 denial notice and decision. The agency
records for 1105 C.D. 2020 and 1106 C.D. 2020 contain substantially the same documents, except
for the final administrative action orders and denial notices. As such, the agency record herein is
referred to in the singular unless the documents vary, in which case 1105 C.D. 2020 or 1106 C.D.
2020 will be noted.
adjudications of the administrative law judge (ALJ) that dismissed Knight’s appeals
as untimely filed. Upon careful review, we affirm the BHA.
Factual History
On June 19, 2018, O.W. entered ManorCare Camp Hill skilled nursing
facility (ManorCare). O.W. was diagnosed with dementia at the time of admission.
On February 11, 2019, ManorCare applied for MA-LTC benefits for O.W. through
CAO.
On March 28, 2019, CAO denied O.W.’s MA-LTC application because
CAO did not receive verification of the face value and current cash value of O.W.’s
Federal Employees Life Insurance policy. (1105 C.D. 2020 - Certified Record (C.R.)
at 12.) Consequently, CAO sent notice that O.W. did not financially qualify for MA-
LTC benefits.2 Id. On April 22, 2019, ManorCare timely appealed the March 28,
2019 notice.
On June 7, 2019, an administrative hearing occurred at BHA with
ManorCare and CAO in attendance. At the hearing, ManorCare and CAO agreed that
ManorCare would provide the missing verification of resources by a date certain.
However, ManorCare never provided the missing information that would have
allowed CAO to determine O.W.’s financial eligibility for MA-LTC benefits.
Consequently, CAO issued and mailed a new notice on October 9, 2019, to
ManorCare and O.W. indicating that O.W. did not qualify for MA-LTC benefits
2
Pennsylvania residents have to meet an asset limit and an income limit in order to be
financially eligible for Nursing Home Medicaid. The DHS regulations provide that the verification
of resources, or the lack of them, is an essential step in the process of establishing eligibility for
public assistance. 55 Pa. Code § 205.3(a)(1).
2
because CAO did not receive the information O.W. was asked to provide.3 (1106
C.D. 2020 - C.R. at 12.) Neither the March 28, 2019 notice nor the October 9, 2019
notice was returned as undeliverable.
On December 18, 2019, Attorney Kirk Sohonage filed two appeals on
behalf of Knight, as the “agent” for O.W. from the original March 28, 2019 notice
and the subsequent October 9, 2019 notice. The first appeal was filed 265 days after
the March 28, 2019 mailing date of the notice and was 235 days late. The subsequent
appeal was filed 70 days after the October 9, 2019 mailing date of the notice and was
40 days late.
On August 7, 2020, BHA conducted a telephone hearing on the issue of
whether either of the appeals should be heard nunc pro tunc. Knight was not present
to testify, nor did he request any accommodation in order to be able to testify. Id.
Knight’s counsel, Attorney Sohonage, provided an out-of-court statement signed by
Knight stating that he was his mother’s “agent” under a power of attorney and that he
did not receive the March 28, 2019 or October 9, 2019 notices. No other parties were
present to testify to support Knight’s statement or any of his claims.
A representative from CAO testified that CAO received O.W.’s
application on February 11, 2019, and the only representative listed on the application
was the representative from ManorCare. (C.R. at 42, 67.) The original application
for benefits dated February 11, 2019 was marked as Exhibit C-2 at the hearing “to
3
At the hearing, CAO informed ManorCare that CAO needed proof of O.W.’s financial
resources, including: bank account information; explanation with documentation for all
withdrawals/checks/debits of $500 or more and any unusual deposits; current statement for Federal
Employees Life Insurance showing policy number issue date, current owner, face value and current
cash value; copy of deed to property and documentation of value; and documentation of current
gross income from U.S. Office of Personnel Management pension. (1106 CD 2020 - C.R. at 12.)
3
show that there were no other contacts” listed on the application.4 (C.R. at 70.) The
representative from CAO testified that CAO sent a denial notice to ManorCare and
O.W. on March 28, 2019. (C.R. at 41, 65.) The CAO representative testified that
CAO was never aware of any person acting on behalf of O.W. during the application
process, so CAO would not have sent notices to anyone other than O.W. and
ManorCare. Id. When asked on cross-examination whether CAO took any steps to
determine whether O.W. had the mental capacity to carry out the responsibilities
related to facilitation and appeal of the denials, the representative testified that
because ManorCare was the only contact for O.W., CAO relied on ManorCare to act
in O.W.’s best interests and comply with the notices and applications. (C.R. at 79.)
Attorney Sohonage did not offer any counterargument or evidence that
Knight was identified in the original application as O.W.’s agent. Further, when
questioned by the ALJ whether Knight notified ManorCare that he had power of
attorney or that he was to be notified or included in the process of applying for
benefits, Attorney Sohonage stated “Not that I’m aware of . . . I’ve never seen
anything like that.” (C.R. at 72.) And, when the ALJ asked Attorney Sohonage
whether Knight ever reached out to CAO to be copied on any of the notices, Attorney
Shonoage stated “I don’t know that he ever reached out to them.” (C.R. at 80a.)
On October 2, 2020, the ALJ issued two adjudications and orders
dismissing the appeals. The ALJ found that there was no credible evidence to
demonstrate that CAO had erred in sending the March 28, 2019 and October 9, 2019
notices to the correct addresses and they were not returned by the post office. The
ALJ found that Knight was not involved in the application for benefits or subsequent
appeal and stipulation of settlement between CAO and the representative from
4
For reasons unknown, Exhibit C-2 was not made part of the certified record.
4
ManorCare. Id. The ALJ also specifically found that “[t]here is no record on the
February 11, 2019 application that [Knight] or any other individual was applying on
behalf of [O.W].” (C.R. at 41-42.)
On October 7, 2020, BHA’s Chief Administrative Law Judge affirmed
the ALJ’s decisions in two orders. (C.R. at 46.) On November 6, 2020, Knight filed
these now-consolidated petitions for review with this Court.5
Knight raises the following issues in support of his argument that he
should have been permitted to appeal the March 28, 2019 and October 9, 2019
denials nunc pro tunc: (1) whether the decision of BHA is void ab initio because the
ALJ identified ManorCare as the proponent of the nunc pro tunc appeals, instead of
him; (2) whether CAO had a statutory duty during the application process to
determine O.W.’s mental capacity before sending any denial notices to her; and (3)
whether Knight was identified on the original application as the “agent” of O.W. and
should have received notice of the denials.
Analysis
In his first issue, Knight argues that the ALJ in her adjudications
misidentified the appealing party as ManorCare instead of Knight. He suggests that
the ALJ’s whole adjudication was based entirely upon a flawed
presumption/misidentification and, thus, the adjudication was wrong ab initio.
5
This Court’s standard of review is limited to a determination of whether an error of law
was committed, whether necessary findings of fact are supported by substantial evidence, and
whether constitutional rights were violated. 2 Pa. C.S. § 704; Archer v. Rockwood Area School
District, 249 A.3d 617, 622 (Pa. Cmwlth. 2021); Aviles v. Department of Human Services, 172 A.3d
708, 710 (Pa. Cmwlth. 2017); Lancashire Hall Nursing & Rehabilitation Center v. Department of
Public Welfare, 995 A.2d 540, 542 (Pa. Cmwlth. 2010).
Substantial evidence is defined as such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Pierson v. Workers’ Compensation Appeal Board, 250 A.3d
547 (Pa. Cmwlth. 2021).
5
(Petitioner’s Brief at 13.) He identifies the following four instances where this
occurred:
1. On page 1 of the Adjudication in the Appearances
section, the Adjudicating ALJ incorrectly identified the
parties in this matter stating, “Kirk Sohonage, Esq. Attorney
for ManorCare Camp Hill” appeared for the Appellant.
2. On page 1 of the Adjudication in the Issue section, the
Adjudicating ALJ incorrectly identified who had filed the
Appeals when she wrote the issue was, “Whether
[ManorCare’s] appeal of the [DHS’s] notice dated October
9, 2019 . . . again disregarding clarification at the hearing
that the Agent/Son was the Appellant.”
3. On page 4 of the Adjudication, in the first paragraph of
the Analysis and Decision, the Adjudicating ALJ
incorrectly identified the Petitioner again as “ManorCare”
who filed an appeal of the October 9, 2019 notice on
December 18, 2019.
4. On page 4 of the Adjudication, in the third paragraph of
the Analysis and Decision, the Adjudicating ALJ again
incorrectly identified ManorCare as the Petitioner in stating:
“The attorney for the facility who is representing the facility
in this appeal. . . .”
(Petitioner’s Brief at 10.)
Aside from arguing summarily that the adjudications were void ab initio,
Knight does not explain how he was prejudiced by this mistake in nomenclature. The
ALJ’s conclusion clearly did not rest on who was representing whom. The pertinent
legal inquiry before the ALJ was whether Knight demonstrated that an administrative
breakdown occurred that caused his appeal to be untimely. Attorney Sohonage
clearly argued on behalf of Knight. The ALJ correctly identified the substantive issue
6
(that being whether Knight’s untimely appeal should be heard), and made findings of
fact that specifically focused on the reasons proffered by Attorney Sohonage as to
why Knight was not served a notice from CAO regarding O.W.’s eligibility for MA-
LTC benefits. The ALJ’s adjudication, findings of fact, and analysis were clear. The
ALJ’s accidental reference to Attorney Sohonage as counsel for ManorCare rather
than counsel for Knight was inconsequential and certainly not prejudicial as the
interests of ManorCare and Knight in obtaining MA benefits were identical and not at
all in conflict. Accordingly, we conclude that the alleged defect was minor in nature,
and does not compel a nullification of the adjudications.
Next, Knight argues that before sending any denial notice to O.W., it
was upon CAO to assess O.W.’s mental capacity to carry out her eligibility
responsibilities as required under the Pennsylvania Code, 55 Pa. Code §
163.3(a)(2)(i) and (v) (Need for a guardian or trustee). Knight asserts that had CAO
complied with this regulation it would have discovered that O.W. was incapable of
carrying out her responsibilities when applying for MA-LTC and requested a
guardian or trustee for her. He argues that CAO’s failure to assess O.W.’s mental
capacity constituted an administrative breakdown to allow the nunc pro tunc appeals
to proceed.
Chapter 275, Subchapter A, of the Public Assistance Manual sets forth
procedures for appeals and fair hearings. With regard to the time limitations on the
appeals at issue here, DHS regulations provide, as pertinent:
(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:
7
(1) Thirty days from the date of written notice of a
decision or action by a County Assistance Office,
administering agency or service provider.
55 Pa. Code § 275.3(b) (emphasis added).
An individual’s failure to timely appeal an administrative agency’s
action is a jurisdictional defect which will result in dismissal of the appeal in most
cases. J.C. v. Department of Public Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998).
Pennsylvania courts have allowed an appeal nunc pro tunc where the delay in filing
the appeal was caused by extraordinary circumstances involving fraud, administrative
breakdown, or non-negligent circumstances related to the appellant. H.D. v.
Department of Public Welfare, 751 A.2d 1216, 1219-20 (Pa. Cmwlth. 2000) (citing
Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996));
Sofronski v. Civil Service Commission, City of Philadelphia, 695 A.2d 921, 924 (Pa.
Cmwlth. 1997)).
An administrative breakdown occurs where an administrative body is
negligent, acts improperly, or unintentionally misleads a party. Carson Helicopters,
Inc. v. Unemployment Compensation Board of Review, 960 A.2d 524, 527-28 (Pa.
Cmwlth. 2008); see also 55 Pa. Code § 275.3(b)(3)(ii). Pennsylvania case law
provides that the petitioner has the burden of proof to show an administrative
breakdown occurred. Congdon ex rel. Bradford County Manor v. Department of
Human Services (Pa. Cmwlth., No. 1817 C.D. 2015, filed May 25, 2016) (citing J.C.,
720 A.2d at 197).
We cannot agree that an administrative breakdown occurred in these
circumstances for the reasons stated by Knight. The regulation upon which Knight
relies is entitled “Need for a guardian or trustee.” It provides in relevant part:
The County Office will decide, in determining initial or
continued eligibility of a client, whether or not he is
8
mentally capable of carrying out the responsibilities related
to eligibility for assistance. If the County Office decides
the client is mentally incapable of carrying out eligibility
responsibilities, the County Office will request a guardian
or trustee for the client. . . .
55 Pa. Code § 163.3(a)(2)(i). See also 55 Pa. Code § 163.3(a)(2)(v) (“the County
Office will have the responsibility for the decision as to whether the client is mentally
able to act on his own behalf in relation to public assistance”).
We have found but one case, Church of God Home, Inc. v. Department
of Public Welfare, 977 A.2d 591, 593, n.4 (Pa. Cmwlth. 2009), which refers to this
section, and held that it does not apply where the client has a representative even
where, as here, the representative fails to comply with a stipulation to provide more
information.6 In Church of God Home, Church of God Home, Inc. (Nursing Home),
a long-term nursing care facility, petitioned this Court for review of a final order of
the Department of Public Welfare7 (DPW), upholding the order of the BHA, which
dismissed as untimely an appeal of the Nursing Home from denial of an application
for MA-LTC benefits for its resident Bertha E. Stone.
The record in that case established that Stone had executed a durable
power of attorney appointing her daughter as her authorized agent. Id. at 592. Stone
6
In Church of God Home, DPW asserted that 55 Pa. Code § 163.3 is an outdated regulation
inapplicable to public nursing home cases. Instead, according to DPW, the relevant regulation is 55
Pa. Code § 125.84 (MA application procedures); the responsibility of interviewing applicants in the
field to assess eligibility no longer belongs to the CAO but to the local county Area Agency on
Aging, and was replaced by the regulation at 55 Pa. Code § 125.84 (Procedure). DPW also
maintained that 55 Pa. Code § 163 conflicts with Sections 5512.1(a)(3) and 5502 of the Probate,
Estates and Fiduciaries Code, 20 Pa. C.S. §§ 5512.1(a)(3) and 5502, requiring, respectively, a
court’s finding that guardianship is necessary given the existence of a durable power of attorney and
providing that guardianship is appropriate when it is the least restrictive alternative. 977 A.2d at
593, n.4.
7
DHS was previously named Department of Public Welfare.
9
was admitted to the Nursing Home and her daughter signed the agreement for Stone’s
admission. Due to her alleged insolvency, the daughter applied for MA-LTC benefits
on Stone’s behalf. On March 7, 2007, CAO sent a denial notice to the daughter
rejecting the application on the grounds that Stone failed to provide documents to
verify her income and resources. The daughter timely appealed and at a BHA
hearing the daughter entered a stipulation with CAO, which stated that the denial
notice would stand unless the daughter provided verification information by a date
certain. Id. The daughter failed to submit any information by the date certain and the
denial notice stood. Id. On December 21, 2007, 259 days after the appeal deadline,
the Nursing Home appealed the March 7, 2007 denial notice. In response to a rule to
show cause why the appeal should not be dismissed as untimely, the Nursing Home
argued that Stone did not have a representative to act on her behalf and that when the
notice was issued Stone could not appeal the denial because she suffered from
dementia and was not able to take care of her financial affairs. Id.
The BHA dismissed the appeal, explaining that at the time of the March
7, 2007 denial, Stone was being represented by her daughter. In the meantime, the
Nursing Home filed a guardianship petition, and a guardian was appointed on June
16, 2008.
The Nursing Home petitioned for review in this Court, arguing that the
daughter had abandoned her obligations to Stone, and this effectively left Stone
without representation to appeal the denial of MA-LTC benefits. Id. at 593. The
Nursing Home had argued that an administrative breakdown occurred because CAO
should have known that Stone was not being effectively represented by her daughter
given her lack of cooperation and that under these circumstances CAO should have
obtained a representative for Stone sooner under 55 Pa. Code § 163. Id. We rejected
10
that argument, noting that the record clearly established that the daughter was Stone’s
duly authorized agent who timely appealed the March 2007 denial notice and entered
the Stipulation as Stone’s representative. Id. at 594-95. We further noted that the
Nursing Home cited no authority for its attempt to invalidate the daughter’s status as
Stone’s representative and for requiring CAO to appoint a guardian solely because
the daughter failed to comply with the terms of the stipulation. Id. at 595.
Pursuant to Section 125.84 of DHS’s regulations, an individual applying
for MA-LTC benefits may either apply on her own behalf or choose to have
someone, including an official of the institution providing service, represent her
during the application process. 55 Pa. Code § 125.84 provides in pertinent part, with
regard to the initiation of application:
(5) If because of illness, infirmity or a physical or mental
handicap a person is unable to apply for himself, a relative,
a friend or official of the institution or agency providing
the service may apply on behalf of the applicant.
(6) If the applicant has a guardian or other legal
representative, that person shall be expected to apply on
behalf of the applicant if he is available to do so.
55 Pa. Code § 125.84(a)(5) and (6) (emphasis added).
Here, as in Church of God Home, O.W. had a representative which was
acting on her behalf for purposes of applying for MA-LTC benefits. ManorCare
applied for MA-LTC benefits on behalf of O.W., which it was authorized to do under
the DHS regulations. Knight, who was O.W.’s power of attorney at the time of her
admission, could or should have filed the application, but for reasons unexplained, he
11
did not.8 Because ManorCare applied on behalf of O.W., CAO had no reason to
believe she was not without a representative that was acting in her best interests.
Thus, there was no reason why CAO should have petitioned to have a guardian
appointed under 55 Pa. Code § 163. Church of God Home. CAO mailed the denial
notice to ManorCare as O.W.’s listed representative. Moreover, the record shows that
Knight was O.W.’s duly authorized agent and that he failed to identify either CAO or
ManorCare of the fact that he had power of attorney, or that he was to be notified or
included in the process of applying for benefits. (C.R. at 72, 80.) Knight’s failure to
notify CAO or ManorCare that he was his mother’s agent, or to arrange proper mail-
handling on his mother’s behalf, is attributable to his own conduct, not that of CAO.
Accordingly, we find no equitable basis to conclude that CAO was responsible for
any administrative breakdown in this case.
Lastly, Knight argues that he was identified on the medical evaluation
form known as an MA51, as O.W.’s “agent” and, therefore, the denial notices should
have been sent to him. Knight has attached a copy of the MA51 to his brief as
Exhibit “B”. He argues that CAO overlooked the MA51 as a source of identifying
who was representing O.W. He contends that had CAO reviewed the MA51, it
would have learned that he was the person acting for O.W. and sent the denial notices
to him.
Though Knight attached the MA51 to his brief, it was not made part of
the record below. Pursuant to Pa. R.A.P. 1551, a petitioner may not include this
document or fact in his brief because it is dehors the record and beyond the Court’s
8
The Power of Attorney entered into evidence at the August 7, 2020 hearing authorized
Knight to exercise general control over O.W.’s financial affairs and specifically stated that Knight
was authorized to provide for “[her] admission to a medical nursing residential or similar care
facility and to enter into agreements for [her] care, if [[she was] unable to do such.” (C.R. at 32.)
12
scope of review. The Court may not consider them in its review of this case. See
Reilly v. Southeastern Pennsylvania Transportation Authority, 489 A.2d 1291 (Pa.
1985).
Even if the MA51 could be considered as evidence in this case, a MA51
is not designed to inform the CAO of who represents an applicant in an application
process. It contains no space for a printed name and address of a representative and
is only designed to “authorize the release of any medical information by the
physician to the County Assistance Office.” See
https://www.dhs.pa.gov/providers/Providers/Documents/NHT%20Providers/MA%20
51.pdf. (setting forth instructions for completing the MA51 – Medical Evaluation)
(last visited 4/13/23).
Accordingly, we must conclude that given these specific factual
circumstances BHA properly concluded that the appeals were untimely filed and that
Knight did not establish grounds for a nunc pro tunc appeal.
The October 7, 2020 orders of BHA are affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Knight, :
Petitioner :
: Nos. 1105 & 1106 C.D. 2020
v. :
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 14th day of April, 2023, the October 7, 2020 orders
entered by the Department of Human Services Bureau of Hearings and Appeals, in
the above consolidated cases, are hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge