Opinion
No. 705 C.D. 2009
07-15-2011
Manor Healthcare Corp. d/b/a ManorCare Health Services - Liberty Nursing & Rehab, Petitioners v. Department of Public Welfare, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Manor Healthcare Corp. d/b/a/ ManorCare Health Services - Liberty Nursing & Rehab (ManorCare) petitions this Court for review of the March 19, 2009 Final Administrative Action Order of the Department of Public Welfare (DPW), affirming the order of the Bureau of Hearings and Appeals' (BHA) Administrative Law Judge (ALJ) dismissing its appeal as abandoned. The issue before this Court is whether DPW erred by denying ManorCare's request for a continuance, then dismissing its appeal on the basis of its failure to appear at the hearing. For the following reasons, we vacate DPW's order and remand this matter for a hearing.
This case stems from an application for long-term care medical benefits filed by ManorCare resident, Mary Ann Pittas. On March 27, 2008, the Lehigh County Assistance Office denied Ms. Pittas' application on the basis that it had not received the necessary verification. ManorCare appealed the denial. The Secretary of DPW directed BHA to conduct a hearing as to whether ManorCare had the authority to represent Ms. Pittas and, if so, to proceed to the merits of the appeal. A telephone hearing was scheduled by BHA for August 25, 2008 at 10:30 a.m.
Due to a scheduling conflict, on August 11, 2008, ManorCare's counsel, requested a continuance of the hearing, which was denied by the ALJ over the phone that day. By letter dated August 14, 2008, the ALJ was notified that ManorCare's counsel was scheduled to attend a guardianship hearing in Centre County Orphans' Court at 11:00 a.m. and, again, requested a continuance. That request was also denied. The hearing was held as scheduled. Thereafter, the ALJ issued an order dismissing ManorCare's appeal as abandoned, since no one attended the hearing on its behalf. ManorCare sought and was granted reconsideration. On February 13, 2009, the matter was remanded to the BHA for a hearing, which was scheduled to take place on March 18, 2009. Notice of the new telephone hearing was provided to ManorCare's counsel.
By letter dated March 6, 2009, ManorCare's counsel requested a continuance of the hearing because he had "a scheduling conflict on that date and cannot attend this BHA hearing." Certified Record (C.R.) at 4, Ex. E. The ALJ denied the request. By letter dated March 12, 2009, ManorCare's counsel objected to the ALJ's failure to continue the hearing, and more specifically stated that the request was made "[d]ue to a previously scheduled hearing with the Cumberland County Register of Wills for March 18, 2009." C.R. at 4, Ex. F. The hearing was held as scheduled on March 18, 2009, without ManorCare's participation. By adjudication issued March 19, 2009, the appeal was dismissed in accordance with Section 275.4(e)(6)(iii) of DPW's Regulations (Regulations), 55 Pa. Code § 275.4(e)(6)(iii), because ManorCare did not provide good cause for not being available and, because it failed to pursue the appeal. On April 3, 2009, ManorCare sought reconsideration by the Secretary of DPW. On April 17, 2009, with its request for reconsideration pending, but unanswered, ManorCare filed an appeal with this Court. Finally, on April 30, 2009, the Secretary of DPW denied ManorCare's request for reconsideration and affirmed the ALJ's dismissal of its appeal.
In an appeal from a final adjudication of DPW, "[t]his Court's scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with law and whether the necessary findings are supported by substantial evidence." Lancashire Hall Nursing & Rehab. Ctr. v. Dep't of Pub. Welfare, 995 A.2d 540, 542 n.1 (Pa. Cmwlth. 2010).
ManorCare argues on appeal that the ALJ committed an error of law that resulted in a denial of its due process rights by refusing to continue the March 18, 2009 hearing, and then dismissing ManorCare's appeal on the basis that it failed to participate in the scheduled hearing. Although we find no violation of ManorCare's due process rights, we conclude that the ALJ committed an abuse of discretion by arbitrarily refusing to continue the subject hearing.
According to Section 275.4(e)(3) of the Regulations, 55 Pa. Code § 275.4(e)(3), an appellant may seek a continuance of a BHA hearing by providing to the ALJ "a reason for the request," which the ALJ "may approve." Pursuant to Section 275.4(e)(6)(iii)(A) of the Regulations, 55 Pa. Code § 275.4(e)(6)(iii)(A), however, if "the appellant or his representative fails to appear at the scheduled hearing without good cause as determined by the [ALJ], the appeal will be considered to be abandoned and will be dismissed." This Court may overrule the judgment of an administrative agency granting or denying a continuance only upon a clear showing of an abuse of discretion. Taylor v. Foster, 561 A.2d 64 (Pa. Cmwlth. 1989). Significant issues to be considered by this Court in determining whether there has been an abuse of such discretion include "whether the rights of one of the parties were prejudiced or whether the interest of justice had been furthered." Id., 561 A.2d at 67.
Constitutional guarantees of due process apply in DPW cases and require, at a minimum, notice and an opportunity to be heard. Hobbs. v. Dep't of Pub. Welfare, 507 A.2d 1290 (Pa. Cmwlth. 1986). ManorCare had notice and the opportunity to be heard on two occasions. Due to its counsel's scheduling conflicts and the ALJ's continuance denials, it lost both opportunities. While this Court may deem a conflict of court obligations sufficient good cause for counsel to request a continuance, we find no basis on which to hold that due process guarantees a party's right to repeated continuances, even for good cause, where no effort is made on the part of counsel to remedy his or her scheduling conflicts. Here, there was no indication of what steps, if any, ManorCare's counsel took to find a substitute for either the subject telephone hearing or the Register of Wills appearance, despite having sufficient time and apparent resources to do so.
Notwithstanding, there is no indication on record as to why the ALJ denied ManorCare's request for continuance. Further, there is no indication that the ALJ gave any consideration to providing an alternate time for the hearing. We note that administrative inconvenience alone will not support a denial of a continuance, where circumstances exist that would warrant one. Roderick v. State Civil Serv. Comm'n, 489 A.2d 980 (Pa. Cmwlth. 1985).
In light of DPW's February 13, 2009 order of remand instructing the BHA to conduct a hearing, and the arbitrary refusal of the continuance denying ManorCare and/or Ms. Pittas their right to have their case presented by their counsel of choice, we hold that the ALJ's denial of ManorCare's request for continuance was an abuse of its discretion and not in the interest of justice. Accordingly, DPW's order is vacated, and this case is remanded for a hearing on the issue of ManorCare's standing and, if found, then on the merits of the case.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 15th day of July, 2011, the March 19, 2009 Final Administrative Action Order of the Department of Public Welfare is vacated, and this case is remanded for a hearing on the issue of Manor Healthcare Corp.'s standing and, if found, then on the merits of the case.
Jurisdiction is relinquished.
/s/_________
JOHNNY J. BUTLER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE McCULLOUGH
Respectfully, I dissent.
Pursuant to DPW's regulations at 55 Pa. Code §275.4(e)(6)(iii)(A) (emphasis added), "[i]f the appellant or his representative fails to appear at the scheduled hearing without good cause as determined by the hearing officer, the appeal will be considered to be abandoned and will be dismissed." The ALJ dismissed ManorCare's appeal as abandoned in accordance with 55 Pa. Code §275.4(e)(6)(iii)(A), citing ManorCare's failure to participate in the March 18, 2009, telephone hearing without providing good cause. The regulation affords the ALJ discretion to determine whether good cause has been established, and here, "there was no indication of what steps, if any, ManorCare's counsel took to find a substitute for either the subject telephone hearing or the Register of Wills appearance, despite having sufficient time and apparent resources to do so." (Majority op. at 4.) Under these circumstances, I disagree that the ALJ's dismissal of the appeal can be characterized as an abuse of discretion.
I also would observe that ManorCare's counsel has yet to indicate what efforts were made to resolve the scheduling conflict or explain why another attorney could not have attended one of the two scheduled appearances.
For the same reasons, I disagree with the Majority that there is no indication in the record as to why the ALJ denied ManorCare's request for a second continuance. The ALJ is vested with authority to regulate the scheduling of hearings, 1 Pa. Code §35.187, and the decision to grant or deny a request for a continuance is committed to the discretion of the ALJ. Lee v. Department of Public Welfare, 523 A.2d 1188 (Pa. Cmwlth. 1987). In the absence of sufficient information demonstrating the necessity for a second continuance, I would conclude that no abuse of discretion is apparent in the record.
Accordingly, I would affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge