Opinion
NO. 2011-CA-001845-MR
02-14-2014
ASSOCIATED HEALTHCARE OF JESSAMINE COUNTY, LLC. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, OFFICE OF HEALTH POLICY, DIVISION OF CERTIFICATE OF NEED; AND SAINT JOSEPH HEALTH SYSTEM, INC., D/B/A SAINT JOSEPH JESSAMINE, R.J. CORMAN AMBULATORY CARE CENTER APPELLEES
BRIEFS FOR APPELLANT: Benjamin M. Fiechter Lisa English Hinkle Emily M. Hord Lexington, Kentucky BRIEF FOR APPELLEES: Ann T. Hunsaker Frankfort, Kentucky Michael D. Baker Lori Payne Eisele Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 11-CI-00769
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND NICKELL, JUDGES. ACREE, CHIEF JUDGE: This is an administrative appeal from an order of the Franklin Circuit Court declining to address, on jurisdictional grounds, a decision of the Cabinet for Health and Family Services (Cabinet) to revoke a certificate of need held by Appellant Associated Healthcare of Jessamine County, LLC (Associated). For the reasons that follow, we affirm.
I. Facts and Procedure
The Cabinet awarded Associated a certificate of need (CON) to establish an ambulatory care center and fixed-site magnetic resonance imaging (MRI) service in Jessamine County, Kentucky. By letter dated October 25, 2010, for reasons not pertinent to the issues raised on appeal, the Cabinet notified Associated of its decision to revoke its CON. Pursuant to Kentucky Revised Statutes (KRS) 216B.086(2), Associated had thirty days - until 4:30 p.m. on November 24, 2010 - to request a hearing. On November 23, 2010, at 4:44 p.m., the Cabinet received, via facsimile, Associated's hearing request. Concurrently, Associated allegedly mailed its original hearing request. However, the Cabinet did not receive the original hearing request until Friday, December 3, 2010.
On February 17, 2011, Appellee Saint Joseph Health System, Inc. d/b/a Saint Joseph Jessamine, R.J. Corman Ambulatory Care Center moved for summary judgment, alleging Associated did not adequately perfect its right to an administrative hearing because it did not follow the proper filing procedures set forth in 900 Kentucky Administrative Regulations (KAR) 6:090 Section 2(2). Although the Cabinet received Associated's written hearing request via facsimile within thirty days, Saint Joseph averred that, because the original hearing request was not received by the Cabinet on the next business day after the due date, i.e., Monday, November 29, 2010, as required by 900 KAR 6:090 Section 2(2), but instead was received on Friday, December 3, 2010, the hearing request was invalid and Associated waived its right to any further administrative or judicial review.
In December 2010, Saint Joseph received notice of Associated's intent to challenge the Cabinet's revocation decision. Pursuant to KRS 216B.015, Saint Joseph identified itself as an "affected person" and filed its notice of appearance on or about February 14, 2011.
As noted, the original due date was Wednesday, November 24, 2010. Due to the Thanksgiving holidays, the Cabinet was closed on Thursday, November 25, 2010, and Friday, November 26, 2010. By operation of KRS 446.030 and 900 KAR 6:090 Section 2(5), the next business day was Monday, November 29, 2010.
A public hearing was held on February 21, 2011; an Administrative Law Judge (ALJ) presided. As a preliminary matter, the ALJ first addressed Saint Joseph's summary-judgment motion. The ALJ found Associated indeed failed to comply with the applicable regulatory and statutory requirements regarding the filing of a hearing request. As a result, the ALJ concluded it lacked jurisdiction to hold a hearing in this matter because the Cabinet's revocation decision became final and nonreviewable after thirty days by operation of KRS 216B.086(2). By order dated March 22, 2011, the ALJ granted Saint Joseph's motion.
Associated sought review of the ALJ's decision by the Franklin Circuit Court. The Cabinet and Saint Joseph jointly moved to dismiss Associated's Petition for Review, asserting the circuit court lacked jurisdiction because Associated did not comply with the mandatory requirements of KRS 216B.086(3) and 900 KAR 6:090 Section 2(2), thereby waiving any right to judicial appeal. The circuit court agreed. Like the ALJ, the circuit court found Associated's hearing request to be deficient because Associated did not file its original hearing request on the next business day after the due date, as required by 900 KAR 6:090 Section 2(2). The circuit court concluded the effect of failing to timely file a hearing request was two-fold: (1) the Cabinet's revocation decision became final pursuant to KRS 216B.086(2); and (2) KRS 216B.086(3) prohibited Associated from seeking judicial review of that final decision. By order entered September 8, 2011, the circuit court granted the Cabinet and Saint Joseph's joint motion to dismiss for want of jurisdiction. From this order, Associated appealed.
II. Standard of Review
"The standard of review, when addressing an appeal from an administrative decision, 'is limited to determining whether the decision was erroneous as a matter of law.'" Board of Com'rs of City of Danville v. Davis, 238 S.W.3d 132, 135 (Ky. App. 2007) (quoting McNutt Construction v. Scott, 40 S.W.3d 854, 861 (Ky. 2001)).
In an appeal of an administrative action by an agency, the circuit courts are to provide review, not reinterpretation. Kentucky Unemployment Insurance Commissioner v. King, Ky.App., 657 S.W.2d 250 (1983). Thus, when substantial evidence exists in the record to support an administrative agency's action, the circuit court has no authority to overturn it. Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972). Our task is to determine whether or not the circuit court's findings upholding the Cabinet are clearly erroneous. CR 52.01.Kentucky Retirement Systems v. Heavrin, 172 S.W.3d 808, 815 (Ky. App. 2005). Agency findings supported by substantial evidence are not clearly erroneous. Id. at 814.
Of course, whether a circuit court lacks jurisdiction is a question of law. Mitchell v. Mitchell, 360 S.W.3d 220, 221 (Ky. 2012). Our review of legal questions is de novo. Id.
We pause to point out that Associated has failed to include a statement of preservation directing us to the portion of record where it preserved the claims of error raised on appeal, as required by Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). This deficiency permits us to apply the the lower review standard, one that will result in reversal only upon a finding of manifest injustice. Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990). However, despite the mandatory nature of the rule, our appellate courts have tended to ignore the failure when: (1) the record is not voluminous and (2) preservation is clear from the face of the record. See Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 481-82 (Ky. App. 2005); Cornette v. Holiday Inn Express, 32 S.W.3d 106, 109 (Ky. App. 2000)(cited in Hudson v. Hudson, 2011 WL 3805980 (No. 2011-SC-000091) (August 25, 2011)). Still, failing to comply with this rule is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is non-optional. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
III. KRS 216B.086 and 900 KAR 6:090
Before addressing the merits of Associated's arguments, an appraisal of the applicable statutory and regulatory provisions is warranted. We start with the procedures set forth in KRS 216B.086. That statute permits the Cabinet to revoke a certificate of need for certain delineated reasons. KRS 216B.086(1). Should it so choose, the Cabinet must give the CON holder notice of its revocation decision. KRS 216B.086(2). The CON holder then has a thirty-day window in which to request a hearing to challenge that decision. KRS 216B.086(3) ("The holder of the certificate of need to be revoked may request in writing a public hearing in respect to an initial decision by the cabinet to revoke a certificate of need within thirty (30) days of the date of notice of the initial decision."). Unless a hearing is so requested, the Cabinet's revocation decision "shall become final after thirty" days. KRS 216B.086(2). The CON holder's "[f]ailure to request a hearing shall constitute a waiver of any right to reconsideration or judicial appeal of a final cabinet decision to revoke a certificate of need." KRS 216B.086(3). If a hearing is timely requested, it shall be held before a hearing officer within thirty days and, at the hearing, the challenger is entitled to counsel, to present oral arguments and evidence, to conduct reasonable cross-examination, and to appeal an adverse final decision by the Cabinet. KRS 216B.086(4) - (6), (10).
In addition to KRS 216B.086, the regulatory provision 900 KAR 6:090 is at issue. Specifically, subsection 2 of that regulation instructs:
(1) The filing of all documents required by this administrative regulation shall be made with the Office of Health Policy, CHR Building, 4 WE, 275 East Main Street, Frankfort, Kentucky 40621 on or before 4:30 p.m. eastern time on the due date.900 KAR 6:090 Section 2(1), (2) (emphasis added). With these as our guide, we address Associated's claims of error.
(2) Filings of documents, other than certificate of need applications and proposed hearing reports, may be made by facsimile transmission if:
(a) The documents are received by the cabinet by facsimile transmission on or before 4:30 p.m. eastern time on the date due; and
(b) An original document is filed with the cabinet on or before 4:30 p.m. eastern time on the next business day after the due date.
IV. Analysis
Associated presents two primary arguments: (1) the Cabinet's decision to revoke its certificate of need was arbitrary, capricious, and unsupported by substantial evidence; and (2) the circuit court erroneously concluded it lacked jurisdiction to consider Associated's Petition for Review and Appeal. We decline to address Associated's substantive argument because it is not ripe for our review. The circuit court did not reach the underlying merits concerning the Cabinet's decision to revoke Associated's CON because it concluded it lacked jurisdiction over the matter. If this Court finds the circuit court erred in so concluding, the relief to which Associated is entitled is to have this matter returned to the circuit court for consideration of the underlying merits. It is not our function to rule on a question that has not been first resolved by the circuit court. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) ("An appellate court 'is without authority to review issues not raised in or decided by the trial court.'" (Citation omitted)).
We now turn to Associated's jurisdiction-related arguments. We preface our discussion by emphasizing that the appellate courts of this Commonwealth rigorously enforce the tenet that judicial review of "an administrative decision is a matter of legislative grace and not a right." Triad Development/Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47 (Ky. 2004); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). "Thus, the failure to follow the statutory guidelines for such an appeal is fatal." Gellhaus, 150 S.W.3d at 47. In that regard, judicial review is foreclosed to a person who fails to strictly follow applicable procedures and statutory mandates because "the court lacks jurisdiction or has no right to decide the controversy." Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916, 917 (Ky. App. 2005) (citation omitted).
Associated raises numerous grounds upon which it claims the circuit court erroneously concluded it lacked jurisdiction. Associated first asserts 900 KAR 6:090 Section 2(2) has no impact on the procedures set forth in KRS 216B.086, and the circuit court erred in finding otherwise. Associated's reasoning is twofold: (1) the Cabinet lacked authority to promulgate 900 KAR 6:090 Section 2(2); and (2) 900 KAR 6:090 Section 2 contains no language referencing or otherwise bearing on the filing of administrative hearing requests required by KRS 216B.086(3). Absent 900 KAR 6:090 Section 2(2), Associated argues, KRS 216B.086(3) permits a CON holder to file its written hearing request by any method within thirty days, and Associated satisfied this burden when it faxed its request for a hearing on November 23, 2010, one day before the due date.
Turning to the first facet of Associated's argument, Associated contends the Cabinet exceeded its authority under its enabling statute when it promulgated 900 KAR 6:090 Section 2(2), in violation of KRS 13A.120. Associated points out that KRS 216B.086, the statute pertaining to certificate of need revocations, contains no language expressly authorizing or empowering the Cabinet to promulgate regulations regarding revocation hearing requests. In response, Appellees claims that 900 KAR 6:090 Section 2(2) is a valid exercise of the Cabinet's rule-making authority pursuant to KRS 216B.040.
"An administrative body's powers are defined and limited by the agency's enabling statute." Kentucky Real Estate Com'n v. Milgrom, 197 S.W.3d 552, 554 (Ky. App. 2005) (citation omitted). KRS 13A.120 plainly "limits regulatory authority by requiring every assertion of such authority to be justified by, and to be an implementation of, a statute expressly granting such authority." Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 491 (Ky. 2009). Hence, to be valid, a regulation must be sustained "by an express grant of regulatory authority clearly embracing that regulation." Id.
900 KAR 6:090 Section 2 sets forth procedures for filing documents relevant to certificates of need, including the proper filing location, permitted filing methods, and filing deadlines. The enabling statute pertinent to certificates of need, KRS 216B.040, directs the Cabinet to "issue and revoke certificates of need[,]" and to "conduct public hearings, as requested, in respect to . . . revocations of certificates of need[.]" KRS 216B.040(1)(b), 2(b). This statute further empowers the Cabinet to promulgate regulations as needed and "necessary for the proper administration of" Kentucky's certificate of need program. KRS 216B.040(3)(a). 900 KAR 6:090 Section 2 undoubtedly assists in the orderly administration of the certificate of need program by establishing clear filing guidelines. For that reason, we conclude 900 KAR 6:090 Section 2(2) is authorized by, and fully comports with, KRS 216B.040.
Associated also argues the circuit court improperly relied upon 900 KAR 6:090 Section 2 in determining that Associated failed to take all necessary steps to seek judicial review of the Cabinet's decision, thereby depriving the circuit court of jurisdiction. Associated maintains 900 KAR 6:090 Section 2 neither addresses nor has any bearing on revocation hearings, and in fact limits itself to the "filing of all documents required by this administrative regulation[.]" 900 KAR 6:090 Section 2(1) (emphasis added). To that end, Associated argues that it was not required to file its hearing request pursuant to 900 KAR 6:090, but under KRS 216B.086(3). We reject Associated's argument for three reasons.
First, preceding its regulatory language, 900 KAR 6:090 specifies it "relates to" KRS 216B.086.
Second, while 900 KAR 6:090, in general, does not overtly reference revocation hearings, it also does not contain language expressly limiting itself to certificate-of-need-application hearings or show-cause hearings. Instead, the regulation contains broad language referring to "hearings on certification of need matters[,]" and prescribes the acceptable filing methods and deadlines for documents pertaining thereto. 900 KAR 6:090 Section 3(1)(a), Section 2. Likewise, the specific subsection authorizing filing by facsimile includes no language limiting it to documents required by this particular regulation: "Filings of documents, other than certificate of need applications and proposed hearing reports, may be made by facsimile transmission[.]" 900 KAR 6:090 Section 2(2) (emphasis added).
Third, throughout the entire course of these proceedings - starting before the ALJ and continuing to this Court - the Cabinet has steadfastly maintained that 900 KAR 6:090 Section 2(2) applies to certificates of need revocation hearings. We afford that interpretation ample deference.
[A]n administrative agency's interpretation of its own regulations is entitled to substantial deference. A reviewing court is not free to substitute its judgment as to the proper interpretation of the agency's regulations as long as that interpretation is compatible and consistent with the statute under which it was promulgated and is not otherwise defective as arbitrary or capricious.Commonwealth, Cabinet for Health Services v. Family Home Health Care, Inc., 98 S.W.3d 524, 527 (Ky. App. 2003) (internal citations omitted). In light of the regulation's broad applicability, and affording the Cabinet's expansive interpretation thereof the appropriate deference due, we find the circuit court did not err by relying on 900 KAR 6:090 Section 2(2) in determining it lacked jurisdiction to consider Associated's Petition of Review and Appeal.
Associated next contends that KRS 216B.086 violates procedural due process. Associated adamantly maintains its "opportunity to make its defense" was foreclosed by the thirty-day limitation contained in KRS 216B.086(3), thereby denying it due process. Associated's argument is essentially this: "After thirty days, this statute [KRS 216B.086] effectively deprives a CON holder of privilege or property rights without any opportunity for a due process hearing. This automatic waiver of the right to protect a privilege or property right violates due process." (Appellant's Brief at 7). We reject this argument because we find that, in fact, KRS 216B.086(3) did not deprive Associated of its procedural due process protections.
The Cabinet asserts this argument is unpreserved because Associated failed to notify the Attorney General of its intention to challenge the constitutional validity of KRS 216B.086, as mandated by KRS 418.075(2). In response, Associated argues it is not challenging the "constitutional validity" of KRS 216B.086, but instead is raising an "as applied challenge," and therefore is not subject to KRS 418.075(2). In any event, the record reveals on July 26, 2012, the Attorney General filed with this Court its "Notice of Intention not to Intervene" in defense of the statute, thereby demonstrating the Attorney General had sufficient notice of Associated's constitution-related arguments and this appeal.
It is elementary that the Due Process Clause of the Fourteenth Amendment to the United States Constitution ensures that no state may "deprive any person of life, liberty, or property, without due process of law." Procedural due process simply includes, at a minimum, reasonable notice of the Cabinet's intended action and "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (emphasis added); Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 346 (Ky. 2006). Of course, that opportunity need not be limitless. Hunter Excavating v. Bartrum, 168 S.W.3d 381, 385 (Ky. 2005).
In Brennan v. Winters Battery Manufacturing Company, 531 F.2d 317 (6th Cir. 1975), the United States Court of Appeals for the Sixth Circuit addressed an argument substantially similar to that raised by Associated. There, the respondent claimed it had "been denied due process of law by the OSHA order which became final and unreviewable on its merits by the Commission or by this court because notification of contest was not filed within fifteen working days from the time respondent received notice of the citation and proposed penalty." Id. at 324. The Sixth Circuit, employing language particularly relevant to this matter, rejected the respondent's argument, reasoning:
Under the provisions of the Act, respondent had an opportunity for a due process hearing before an Administrative Law Judge and the Commission, and the right to judicial review before this court. It forfeited that right by failing to give notification to contest within fifteen working days. Although it may be argued with logic that the time period is too short, this is a matter for determination by Congress. Yakus v. United States, 321 U.S. 414, 433, 64 S.Ct. 660, 88 L.Ed. 834 (1944). The controlling fact is that respondent had a right to a due process hearing, which it failed to exercise. We find no deprivation of due process.Id. at 324-25 (emphasis added). We find the reasoning of the Sixth Circuit persuasive, and equally applicable here. Similar to the Act in Brennan, the Cabinet's revocation decision only became final and unreviewable under KRS 216B.086(2) when Associated failed to timely challenge that decision. Id. at 324. "Such a procedure, so long as it affords to those affected a reasonable opportunity to be heard and present evidence, does not offend against due process." Yakus, 321 U.S at 433, 64 S.Ct. at 671. Moreover, like the respondent in Brennan, Associated had a right and opportunity to a due process hearing; KRS 216B.086 clearly "affords a method of procedure, with notice, and operates on all alike." Parrish v. Claxon Truck Lines, Inc., 286 S.W.2d 508, 512 (Ky. 1955) (quoting Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 36 S.Ct. 637, 60 L.Ed. 1084 (1916)). Associated ultimately waived that right when it failed to file a timely hearing request and, in turn, failed to avail itself of the accessible administrative remedy. "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in . . . civil cases by the failure to make timely assertion of the right[.]" Yakus, 321 U.S. at 444, 64 S.Ct. at 677. Associated was not denied due process.
Associated also contends that 900 KAR 6:090 Section 2(2) deprived it of due process. Associated argues that, by forcing a party to deliver the original petition the day after the due date, the Cabinet has made preserving the right to appeal "extremely difficult." Associated claims the regulation imposes an "undue burden" on parties opposing a revocation of a certificate of need. Further, Associated asserts that the substantial cost in meeting the next-day requirement, and the genuine risk that those who are unable to do so will lose the right to defend their CON rights, "lead to a deprivation of property rights and privileges under the CON without a hearing in direct violation of the due process clauses of the U.S. Constitution." We are not persuaded.
Associated asserts its due process and undue burden arguments separately. However, because they are substantially similar, we have chosen to address both arguments simultaneously.
900 KAR 6:090 Section 2(2) does not work an undue hardship but affords a measure of leniency. Those who push the limits of filing deadlines do so at their own peril. We remind Associated that KRS 216B.086(3) permits a CON holder to file its hearing request at any point within 30 days of notice of the Cabinet's revocation decision. CON holders are also not bound by the facsimile method; it is merely one method, afforded by Cabinet as a matter of grace, by which a party may request a hearing. Concomitantly, 900 KAR 6:090 Section 2(2) neither affects nor limits the filing period expressed in KRS 216B.086(3), except to narrowly extend it by granting a one-day grace period for filing the original hearing request if a copy was indeed faxed prior to the due date. Any additional costs incurred are the making of the CON holder who chooses, sometimes to its own detriment, to utilize this rule at the very last moment. We perceive no deprivation of due process.
As a corollary to its due process arguments, Associated argues that 900 KAR 6:090 Section 2(2) violates the prohibition against absolute and arbitrary power under Section 2 of the Kentucky Constitution due to its imposition of "strict filing requirements." Section 2 of our Constitution ensures that citizens of this Commonwealth shall not be subjected to arbitrary state action. Smith v. O'Dea, 939 S.W.2d 353, 357 (Ky. App. 1997); Ky. Const. § 2. "With respect to adjudications, whether judicial or administrative, this guarantee is generally understood as a due process provision whereby Kentucky citizens may be assured of fundamentally fair and unbiased procedures." Id.; Kentucky Milk Marketing and Antimonopoly Com'n v. Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985) ("Section 2 is broad enough to embrace the traditional concepts of both due process of law and equal protection of the law.").
This section states in its entirety: "Absolute and arbitrary power over the lives, liberty and property of free men exists nowhere in a republic, not even in the largest majority." Ky. Const. § 2.
As explained in detail above, there is nothing fundamentally unfair or prejudicial regarding the procedures set forth in KRS 216B.086 or 900 KAR 6:090 Section 2(2). Those procedures apply uniformly to any CON holder facing certificate of need revocation. The statutory and regulatory sections also provide for a full and comprehensive due process hearing, if timely requested. In this respect, we do not perceive the thirty-day limitations period to be excessively strict or unreasonable. We are simply unable to conclude that 900 KAR 6:090 Section 2(2) runs afoul of Section 2 of the Kentucky Constitution.
Associated also asserts the circuit court erred in granting the Appellees' joint motion to dismiss on jurisdictional grounds because "it presented evidence before the Cabinet that it had filed its original request for a hearing to challenge the Cabinet's decision to revoke its CON" and the circuit court failed to take that allegation as true. When assessing an act by an agency, the circuit court is not permitted to reweigh evidence. Runner v. Commonwealth, 323 S.W.3d 7, 10 (Ky. App. 2010). The court's function is review. Id. While Associated did present evidence to the ALJ as to when it had filed its original hearing request, the ALJ weighed all the evidence presented by Associated and by the Appellees, and concluded that Associated did not file its original hearing request until December 3, 2010. Because the ALJ's decision was supported by substantial evidence, the circuit court was bound by that finding, just as is this Court. See id.
Associated did not argue before the circuit court that it presented evidence that it timely filed its original hearing request in accordance with the regulatory scheme. Furthermore, in its petition for review, Associated alleged that, "[o]n or about November 23, 2010, Associated transmitted to the Cabinet by facsimile a request for a revocation hearing and transmitted the original request via U.S. Mail." But in response to the motion to dismiss the petition, Associated presented an affiant's testimony that, "[t]o the best of her recollection, on November 24, 2010, [she] sent a runner to hand deliver the original hearing request, in accordance with standard office policy."
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Associated's final argument is that the "next day rule" under 900 KAR 6:090 Section 2(2) is incompatible with Kentucky Rules of Civil Procedure (CR) 6.05. Associated champions CR 6.05, claiming it must give way to 900 KAR 6:090 Section 2(2). The service of the Board's revocation decision upon Associated was by mail and, as a result, Associated contends the thirty-day period in which it had to request a hearing should have been extended by three days pursuant to CR 6.05. In response, Appellees maintain Associated's argument fails because the Civil Rules do not apply to certificate of need proceedings. Given this lack of applicability, Appellees assert no conflict exists.
CR 6.05 provides: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period." Assuming without deciding that 900 KAR 6:090 Section 2(2) indeed must give way to CR 6.05, it does not afford Associated the relief it seeks. Associated was served with notice of the Cabinet's decision on October 25, 2010. Taking as true Associated's argument that CR 6.05 applies, and adding three additional days to the thirty-day period, Associated's hearing request would have been due Saturday, November 27, 2010. Of course, when "[t]he last day of the period so computed is . . . a Saturday, a Sunday, a legal holiday . . . the period runs until the end of the next day which is not one (1) of the days just mentioned." KRS 446.030; 900 KAR 6:090 Section 2(5). Accordingly, Associated's "due date" would be Monday, November 29, 2010. Pursuant to 900 KAR 6:090 Section 2(2), to perfect a party's right to an administrative hearing, an original hearing request, transmitted via facsimile prior to or on the due date, must be received by the Cabinet on or before 4:30 p.m. "on the next business day after the due date." 900 KAR 6:090 Section 2(2)(b). Here, the next business day after the CR 6.05 modified due date would be Tuesday, November 30, 2010. Associated filed its original hearing request on Friday, December 3, 2010. Even if we superimposed upon the administrative regulation in question the grace period of CR 6.05, the filing still would have been untimely.
V. Conclusion
Associated has failed to raise any persuasive grounds meriting reversal. The Franklin Circuit Court's September 8, 2011 Opinion and Order is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Benjamin M. Fiechter
Lisa English Hinkle
Emily M. Hord
Lexington, Kentucky
BRIEF FOR APPELLEES: Ann T. Hunsaker
Frankfort, Kentucky
Michael D. Baker
Lori Payne Eisele
Lexington, Kentucky