Opinion
No. 1330 C.D. 2011
03-05-2012
Leonard C. Wright, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Leonard C. Wright, pro se, petitions for review of an adjudication of the Secretary of Public Welfare (Secretary) refusing to set aside the Department's sanctions excluding him from participation in the Medical Assistance program until March 28, 2013. The Secretary denied Wright's petition for reconsideration of the decision of the Bureau of Hearings and Appeals (Bureau) to dismiss his appeal when he did not comply with the appeal procedures. Finding no error, we affirm.
This case has its origins in a notice of sanctions against Wright issued by the Department of Public Welfare on September 30, 2008. Wright appealed and was, at some point in the proceeding, ordered to submit a position paper to the Bureau by November 1, 2010. He did not do so, and on December 21, 2010, the Bureau issued a rule to show cause directing Wright to file a response no later than January 20, 2011. The rule stated that failure to respond could result in dismissal of his appeal. Reproduced Record at 27a. Wright did not file a response, and, as a consequence, the Administrative Law Judge recommended that Wright's appeal be dismissed. The Bureau adopted the recommendation as its own on March 24, 2011.
Neither party has explained why Wright was sanctioned, though it appears related to a claim of Medical Assistance fraud. The record includes a letter from Wright to the Bureau stating that he should not be sanctioned under the regulation because the regulation applied only to Medical Assistance providers, and he was not a provider. Reproduced Record at 9a. His letter also stated that he now had a Master's Degree; this suggests that he was employed in processing Medical Assistance claims.
Wright filed an application for reconsideration with the Secretary on April 11, 2011. In support, Wright explained, inter alia, that he did not receive the notice of the rule to show cause and asked that the proceedings be stayed while he appealed a forgery conviction. On May 5, 2011, the Secretary issued a final order denying his request for reconsideration, and he filed a petition for review with this Court.
In actuality, Wright filed a second request for reconsideration that was transferred to this Court and treated as a petition for review.
The Department filed a motion to dismiss Wright's appeal because he did not appeal the Bureau's March 24, 2011, order within 30 days. On October 11, 2011, this Court granted the Department's motion with respect to Wright's appeal of the Bureau's March 24, 2011, order because it was untimely. However, because Wright timely appealed the Secretary's denial of reconsideration, we did not dismiss Wright's appeal of the reconsideration decision.
An agency's decision to grant or deny a request for reconsideration is a matter of discretion and will be reversed only where that discretion is abused. Keith v. Department of Public Welfare, 551 A.2d 333, 336 (Pa. Cmwlth. 1988). Our scope of review of an agency's decision on a reconsideration request is limited to determining whether the secretary has abused his or her discretion. J.B. Steven, Inc. v. Department of Transportation, 627 A.2d 278, 280 (Pa. Cmwlth. 1993). An abuse of discretion will only be found where the evidence shows there was fraud, bad faith, capricious action or abuse of power. Id. (citing Keith, 551 A.2d at 336). A reversal requires a remand because we do not decide the merits of a reconsideration request.
Wright sets forth two questions for our review: (1) whether the Bureau violated his due process rights by dismissing his appeal; and (2) whether the Bureau erred by not staying its proceedings while he attempted to appeal a forgery conviction by filing a federal habeas corpus petition with the U.S. District Court for the Eastern District of Pennsylvania. Both of these arguments pertain to the Bureau's March 24, 2011, order, and this Court has already dismissed Wright's appeal of that order. The only issue is whether the Secretary abused his discretion in denying Wright reconsideration of the Bureau's order.
As this Court noted in Keith, a party aggrieved by a Bureau order has four options: (1) do nothing; (2) appeal that order to this Court within 30 days; (3) seek reconsideration from the Secretary within 15 days; or (4) seek reconsideration from the Secretary within 15 days and appeal the final order to this Court within 30 days. Keith, 551 A.2d at 335. Those seeking review of the merits of a Bureau adjudication must file a petition for review with this Court. Id. at 337 n.8. Wright did not do so, making an appeal of the merits of the March 24, 2011, order untimely. --------
A careful review of Wright's petition for review and brief shows that they offer no arguments to suggest that the Secretary abused his discretion in denying the request for reconsideration. Accordingly, any issue relating to reconsideration has been waived. See City of Philadelphia v. Workers' Compensation Appeal Board (Ford-Tilghman), 996 A.2d 569, 572 (Pa. Cmwlth. 2010) (noting that issues not raised in a party's petition for review and brief are deemed waived). Because Wright has failed to set forth any basis on which this Court can grant relief, we must affirm.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of March, 2012, the order of the Department of Public Welfare, dated May 5, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge