Opinion
No. 314 C.D. 2012
09-13-2012
George Vucelich, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
George Vucelich (Vucelich), pro se, petitions for review of the Department of Public Welfare, Bureau of Hearings and Appeals' (DPW) January 12, 2012 order affirming Keystone Mercy Health Plan's (Keystone) denial of a dental procedure. The issues for this Court's review are: (1) whether DPW violated Vucelich's due process rights, and (2) whether DPW's denial of reconsideration was contrary to law. We affirm.
Pursuant to an agreement with the Commonwealth of Pennsylvania, Keystone administers Medical Assistance (MA) benefits to recipients in southeastern Pennsylvania, including Vucelich. On September 29, 2011, Vucelich's dentist, Dr. Bhaskar Savani, submitted an authorization request to Keystone for a post and crown procedure for Vucelich's tooth number 19 (lower left first molar). On October 3, 2011, Keystone notified Vucelich that the requested procedure was "[d]enied as not being medically necessary (now)" because: "The tooth is not filled within two (2) millimeters of the radiological apex . . . or the root canal filling does not appear to be adequately condensed and/or filled. Once this condition is fixed, your dentist may resubmit this request." Original Record (O.R.) Item 3, Ex. C-1 at 1. Vucelich timely appealed to DPW. A telephone hearing was held on January 3, 2012 before an administrative law judge (ALJ), during which Vucelich and licensed dentist, Dr. Murray Cohen testified. On January 12, 2012, the ALJ issued an adjudication denying Vucelich's appeal, which was affirmed the same day by the Bureau of Hearings and Appeals' chief ALJ on DPW's behalf. Vucelich filed an application for reconsideration which DPW denied. Vucelich appealed to this Court.
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).
Vucelich first argues that his due process rights were violated. Vucelich specifically contends that he was given only five days' notice before the hearing, the hearing was by telephone instead of in-person, he was precluded from presenting evidence, he was not timely notified that Keystone would present a witness, and the ALJ gave him incorrect legal advice. We disagree.
"While not capable of exact definition, the basic elements of procedural due process are adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction of the case." Lawson v. Dep't of Pub. Welfare, 744 A.2d 804, 806-807 (Pa. Cmwlth. 2000). Section 275.1(a)(1) of DPW's Regulations, 55 Pa. Code § 275.1(a)(1), provides: "The freedom of the . . . recipient to request a hearing is a fundamental right and is not to be limited or interfered with in any way." Moreover, Section 275.3(a) of DPW's Regulations, 55 Pa. Code § 275.3(a), mandates:
An appellant has the right to appear in person at the hearing and he may represent himself . . . . The appellant . . . [has] the following rights:
(1) To present evidence on his own behalf, to bring witnesses or documents he deems necessary, and to confront and cross-examine witnesses the county office, administering agency or social service provider will produce to support its decision or action.
(2) To request a subpoena from the hearing officer for the production of evidence or witnesses that he feels will be essential in obtaining necessary facts.
According to the record, Keystone's denial notice specified that Vucelich could "ask for a fair hearing from [DPW]," and that his request should include, inter alia, whether he "wants to have a hearing in person or by telephone." O.R. Item 3 Ex. C-1 at 2. Vucelich timely requested in writing "to have a hearing in person." O.R. Ex. A-1. Notwithstanding, DPW scheduled a telephone hearing. During the telephone hearing, however, Vucelich was offered an in-person hearing, which he declined.
Vucelich objected to the timeliness of the hearing notice for the first time in his request for reconsideration. With limited exceptions not applicable here, Pa.R.A.P. 1551(a) states that "[n]o question shall be heard or considered by the court which was not raised before the government unit . . . ." Because Vucelich failed to raise this issue before the ALJ, he waived it. Thus, it will not now be considered by this Court. Even if we were to consider timeliness of the notice, because the notice was not made part of this record, and there was no testimony about it at the hearing, we cannot determine when it was issued.
At the outset of the hearing, Vucelich notified the ALJ that he had requested a hearing in person, but stated, "seeing the way things worked out with the weather, perhaps this is the best bet." DPW Br. App. A at 7. During his testimony, Vucelich again stated, "I don't have the information in front of me[,] . . . I was expecting to have a hearing in person . . . ." DPW Br. App. A at 23. The ALJ explained that if he still wished to have a hearing in person, he would grant that request. Vucelich responded, "No. I'll go with the telephone hearing." DPW Br. App. A at 23-24.
Rather than being supplied with the Original Record, the notes of testimony were attached as Appendix A to DPW's brief. Rather than being attached to the hearing transcript, the hearing exhibits make up Item 3 of the Original Record.
Vucelich claims that he declined the in-person hearing because the ALJ gave him "improper legal advice" that he could appeal the telephone hearing. Vucelich Br. at 9. Specifically, Vucelich contends that when he declined the in-person hearing offered by the ALJ at the conclusion of the hearing, he said, "I know we could always appeal that," to which the ALJ responded, "Yes, you could." DPW Br. App. A at 24. Because Vucelich was indeed entitled to an appeal from DPW's order, the ALJ's response was proper. Accordingly, this claim is without merit.
Vucelich's contention that the telephone hearing prevented him from presenting evidence is also without merit. He argues in his brief that he had sworn statements to present to the ALJ in support of his case, but could not do so at a telephone hearing. See Vucelich Br. at 7, 10. However, Vucelich made no reference to sworn statements during the hearing. While cross-examining Dr. Cohen about the necessity of another root canal before the post and crown procedure would be approved, Vucelich stated: "I assumed that this was going to be a person-to-person meeting. I would have brought some stuff in." DPW Br. App. A. at 17. Then, when attempting to explain what his former dentist told him about his root canal, Vucelich said: "I don't have the information in front of me . . . I was expecting to have a hearing in person . . . ." DPW Br. App. A. at 23. Vucelich never mentioned he had sworn statements, let alone that he intended to present them for the ALJ's consideration. Vucelich merely offered his former dentist's telephone number so Dr. Cohen could call her. The ALJ explained that, although it would be unusual to do so, he would call the former dentist and take her testimony right then. Vucelich declined, stating: "[W]e don't have to do that if that would be a problem," since he did not know her schedule, and she might be off or with a patient. Rather than making the call or offering any evidence, Vucelich simply agreed to have another root canal per Keystone's recommendation.
Because the notice of hearing is not included with this record, we do not know what it stated regarding how to present evidence during the telephone hearing. At the hearing, however, the ALJ went to great lengths to assist Vucelich in presenting his case. Moreover, despite Vucelich's claim that he was unaware that Keystone would offer a witness at the hearing, he did not object to Dr. Cohen's presence and, in fact, cross-examined him.
This Court has held that "where the person seeking relief before an [ALJ] is not represented by counsel, the [ALJ] must be more than usually cautious to insure that all relevant issues are fully examined and that all parties have an opportunity to fully present their case." Brandt v. Dep't of Pub. Welfare, 427 A.2d 758, 761 (Pa. Cmwlth. 1981). The ALJ in this case assisted Vucelich, giving him every opportunity to put on his case, offering him an in-person hearing and offering to call an unscheduled witness on Vucelich's behalf. Because he received adequate notice, the opportunity to be heard, and the chance to defend himself, Vucelich's due process rights were not violated.
Vucelich also argues that DPW's denial of his request for reconsideration violated Section 205.10(a)(15) of the Code of Federal Regulations, 45 C.F.R. § 205.10(a)(15), and Section 507 of the Administrative Agency Law, 2 Pa.C.S. § 507. We disagree.
Although Vucelich refers in his brief to Section 597, it is clear from the context that he meant to reference Section 507. --------
First, Section 205.10 of the Code of Federal Regulations establishes the criteria for Commonwealth's plan for public assistance hearings. Section 205.10(a)(15) of the Code of Federal Regulations requires that DPW's Regulations provide for an opinion from the Commonwealth's public assistance hearing authority after a de novo hearing that specifies "the reasons for the decision and identif[ies] the supporting evidence and regulations." 45 C.F.R. § 205.10(a)(15)(ii). There is no similar requirement concerning reconsideration requests. In this case, the ALJ issued an adjudication after the hearing specifying the reasons for his decision and supporting evidence and regulations. Thus, DPW did not violate Section 205.10(a)(15) of the Code of Federal Regulations.
Second, Section 507 of the Administrative Agency Law requires that "[a]ll adjudications of a Commonwealth agency shall be in writing, [and] shall contain findings and the reasons for the adjudication . . . ." 2 Pa.C.S. § 507. "Adjudication" is defined as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." 2 Pa.C.S. § 101. Section 102 of the Administrative Agency Law, 2 Pa.C.S. § 102, authorizes DPW to promulgate regulations implementing its provisions. Section 275.4(h)(4)(ii) of DPW's Regulations provides in pertinent part:
Either party to a proceeding has 15 days from the date of the decision of the Director of the Office of Hearings and Appeals within which to request reconsideration of that decision by the Secretary of [DPW]. . . . The Secretary will, within 15 working days from the date the request is received, respond in writing to the request. The Secretary may affirm, amend, or reverse the decision . . . or remand the case to the hearing officer for further findings of fact.55 Pa. Code § 275.4(h)(4)(ii).
According to this record, Vucelich filed a request for reconsideration on January 19, 2012, which was reviewed by DPW and denied in writing by a February 8, 2012 order. The order specifically states that reconsideration was denied "for the reasons stated by the Bureau of Hearings and Appeals in its Final Administrative Action Order." O.R. Item 6. Because the order clearly adopts the Bureau of Hearings and Appeals' findings and reasons, DPW's denial was not contrary to either DPW's Regulations or Section 507 of the Administrative Agency Law.
Based upon the foregoing, DPW's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 13th day of September, 2012, the Department of Public Welfare, Bureau of Hearings and Appeals' January 12, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge