Opinion
No. 1691 C.D. 2013
05-19-2014
Jewish Home of Greater Harrisburg, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
The Jewish Home of Greater Harrisburg (Applicant) petitions this Court for review of the Secretary of the Department of Public Welfare's (DPW) August 26, 2013 order denying Applicant's Request for Reconsideration of a Final Administrative Action Order (final order) of the Chief Administrative Law Judge (CALJ) of DPW's Bureau of Hearings and Appeals (BHA). The sole issue before this Court is whether Applicant's Request for Reconsideration was properly denied. After review, we affirm.
Applicant also raises the issue of whether the CALJ's July 12, 2013 order dismissing its appeal as untimely was proper; however, that order is not before this Court. In its petition for review, Applicant maintains that the filing of the reconsideration request extended the time for filing its petition for review. However, pursuant to Section 35.241 of the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.241, a party has 15 days to seek reconsideration, and the agency has 30 days to act on it. A shortened time period is contemplated if the party also files a petition for review, but that did not happen here. The failure to file a timely petition for review on the merits entitles the party to review of only the agency's decision to deny reconsideration. See Keith v. Dep't of Pub. Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988); Monsour Med. Ctr. v. Dep't of Pub. Welfare, 533 A.2d 1114 (Pa. Cmwlth. 1987). Because Applicant filed its appeal from the CALJ's July 12, 2013 order beyond the mandatory 30-day appeal period, this Court lacks the authority to review it.
Applicant is a long-term care (LTC) facility at which Iris Harad (Harad) was a resident. On October 15, 2012, Applicant submitted an application to DPW on Harad's behalf for LTC medical assistance (MA) benefits. On December 5, 2012, DPW authorized LTC MA benefits for Harad effective July 1, 2012 and notified Applicant. On January 9, 2013 at 5:49 p.m., Applicant faxed a notice of appeal to the Dauphin County Assistance Office (CAO) which was received that same date. Thus, CAO received the notice of appeal 36 days after the December 5, 2012 notice was mailed.
Applicant's appeal disputed the eligibility date of Harad's LTC MA benefits. --------
On July 10, 2013, an ALJ hearing was held from the BHA by telephone. On July 12, 2013, the ALJ dismissed Applicant's appeal as untimely and the CALJ issued a final order affirming the ALJ's decision. Applicant filed a request for rehearing or reconsideration which DPW's Secretary (Secretary) denied on August 26, 2013. Applicant appealed to this Court.
Applicant argues that the ALJ's determination that Applicant's appeal was untimely filed was an error of law and not supported by substantial evidence. Specifically, Applicant maintains that its Representative Financial Assistance Coordinator Minerva Rios (Rios) testified at the ALJ hearing that she attempted to fax the notice of appeal on January 4, 2013, and the ALJ found her testimony credible. However, the order before us is not the CALJ's final order dismissing Applicant's untimely appeal, but rather the Secretary's order denying reconsideration.
This Court has held that "[b]ecause whether to grant or deny a request for reconsideration is a matter of administrative discretion, this [C]ourt's scope of review of that decision is limited to determining whether the [Secretary] abused [her] discretion." W. Penn Power Co. v. Pa. Pub. Util. Comm'n, 659 A.2d 1055, 1065 (Pa. Cmwlth. 1995). An abuse of discretion occurs only when a decision reflects evidence of bad faith, fraud, capricious action or an abuse of power. Id.
Further, Section 275.3(b) of the DPW's Regulations provides in relevant part:
An applicant . . . 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:55 Pa. Code § 275.3(b). "It is well established that the failure to timely appeal an administrative agency's action is a jurisdictional defect. The time for taking an appeal therefore cannot be extended as a matter of grace or mere indulgence." J.C. v. Dep't of Pub. Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998) (citation omitted).
(1) Thirty days from the date of written notice of a decision or action by a County Assistance Office, administering agency or service provider . . . .
In the instant case, notwithstanding Rios' testimony that she attempted to fax the notice of appeal on January 4, 2013, and the ALJ finding her testimony credible, it is undisputed that the CAO mailed its decision on December 5, 2012. It is also uncontested that Applicant faxed a notice of appeal on January 9, 2013, and the DPW received that notice of appeal on January 9, 2013 (36 days after the CAO's decision). Thus, the ALJ properly determined that Applicant's notice of appeal was not filed within the mandatory 30-day time limit. Moreover, Applicant does not allege that the Secretary abused her discretion, or that there existed any bad faith, fraud, capricious action or an abuse of power. Because we cannot conclude that the Secretary's decision denying reconsideration of the CALJ's decision demonstrates evidence of bad faith, fraud, capricious action or an abuse of power, we hold that the Secretary did not abuse her discretion in denying Applicant's request for reconsideration.
For all of the above reasons, the Secretary's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 19th day of May, 2014, the Secretary of the Department of Public Welfare's August 26, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge