IN THE COMMONWEALTH COURT OF PENNSYLVANIA Reliant Senior Care Management, : Inc. d/b/a Easton Health and : Rehabilitation Center, : Petitioner : No. 1180 C.D. 2014 : Submitted: January 16, 2015 v. : : Department of Public Welfare, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: March 10, 2015 Reliant Senior Care Management, Inc., doing business as Easton Health and Rehabilitation Center (Easton), petitions for review of a final order of the Department of Public Welfare 1 (Department), Bureau of Hearings and Appeals (BHA) denying its application for medical assistance (MA) filed on behalf of Gerardo Tobar (Tobar). Easton contends the Department erred by not awarding interim assistance benefits for the entire period requested in accordance with the Department s regulations. For the following reasons, we affirm. 1 The Department of Public Welfare is now called the Department of Human Services.
I. Background On November 14, 2013, Tobar was admitted into Easton s skilled nursing facility. Tobar, who suffers from a variety of medical problems, is an undocumented alien. Upon Tobar s admission to the facility, Easton filed an MA application for long-term care on Tobar s behalf. Easton requested benefits effective November 14, 2014 the date of Tobar s admission. The Department s County Assistance Office (CAO) denied the application because Tobar did not meet the citizenship and alienage requirements under federal and state law. Easton, as the contracted assignee of Tobar s MA benefits, appealed the denial on February 6, 2014. According to the Department s regulations, the Department has 90 days from the date the appeal is received to render its decision; otherwise an applicant may be entitled to interim assistance. Ninety days after the appeal date of February 6, 2014, was May 7, 2014. Because BHA did not adjudicate Easton s appeal within the 90-day period, Easton filed an inaction appeal requesting interim assistance from the Department. CAO authorized interim assistance effective May 8, 2014. Shortly thereafter, in June 2014, BHA held a hearing on the denial of Easton s MA application. BHA concluded CAO correctly denied the MA application because Easton did not establish Tobar s eligibility based on his 2
citizenship and alien status. BHA issued its final administrative action order denying Easton s MA appeal. Easton requested reconsideration by the Secretary of the Department. Easton asserted BHA improperly denied MA benefits. In addition, it argued the CAO should have awarded interim assistance benefits effective November 14, 2013 the date of the MA application not May 8, 2014. Easton also filed a timely petition for review in this Court raising the same objections. Shortly thereafter, the Secretary denied Easton s request for reconsideration for the reasons stated by the BHA in its final administrative action order. II. Issues On appeal, 2 Easton contends the Department erred by awarding interim assistance benefits effective May 8, 2014, not November 14, 2013. According to Easton, the Department s regulations clearly authorize interim assistance for the entire period requested in Easton s original appeal when the Department does not render a decision within the 90-day adjudication period. 3 2 We note Easton appealed BHA s final administrative action order, not the Secretary s order denying reconsideration. See Pet r s Pet. for Review, 7/15/14. Our review of an agency s final administrative action order is limited to determining whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, and whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704; Bussoletti v. Dep t of Pub. Welfare, 59 A.3d 682 (Pa. Cmwlth. 2012). 3 Although Easton challenged the denial of MA benefits in its petition for review, it abandoned that argument in its brief. 3
The Department counters Easton waived the issue of the interimassistance effective date because Easton did not raise the issue until its request for reconsideration. Notwithstanding, the Department asserts it correctly authorized interim assistance, effective May 8, 2014, pursuant to its regulations. According to the Department, interim assistance begins the first day after the 90-day adjudication period expires. III. Discussion We first address the Department s assertion of waiver. As a general rule, a party waives review of an issue by not raising it at the earliest possible opportunity. Campbell v. Dep t. of Transp., Bureau of Driver Licensing, 86 A.3d 344 (Pa. Cmwlth. 2014). An administrative law tribunal must be given the opportunity to correct its errors as early as possible. Wing v. Unemployment Comp. Bd. of Review, 436 A.2d 179, 181 (Pa. 1981). Consequently, issues not raised before a request for reconsideration are generally deemed waived. See Mason-Dixon Resorts, L.P. v. Pa. Gaming Control Bd., 52 A.3d 1087 (Pa. 2012); Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011); see also Geriatric & Med. Servs., Inc. v. Dep t of Pub. Welfare, 616 A.2d 746 (Pa. Cmwlth. 1992). Here, Easton filed an inaction appeal requesting interim assistance. CAO authorized interim assistance benefits, effective May 8, 2014. However, Easton did not dispute the interim-assistance effective date by appealing the interim assistance notice or by raising the issue at the June hearing or in any of its post-hearing documentation submitted to BHA. Easton first attempted to raise the 4
issue of interim assistance before the Secretary in its request for reconsideration of BHA s final administrative action order. Easton argues there was no opportunity to raise the issue at an earlier point. Easton contacted the Department shortly after filing the inaction appeal. According to Easton, a BHA representative advised a hearing would be scheduled on the inaction appeal. However, prior to scheduling a hearing, CAO sent Easton a notice authorizing interim assistance. The authorization of interim assistance pending final adjudication on the MA appeal obviated the need for a hearing on the inaction appeal. Because Easton did not appeal the interim assistance notice or raise the issue of interim assistance at any point prior to the request for reconsideration, we agree with the Department that Easton waived the issue for review. Notwithstanding the waiver, we conclude the Department correctly authorized interim assistance, effective May 8, 2014, pursuant to its regulations. The Department s regulations provide: (d) Interim assistance. When final administrative action has not been rendered within the applicable time limit as described in subsection (c), the office of the appropriate Deputy Secretary will notify the county office, administering, or provider agency to authorize the assistance which the appellant has requested in his appeal until final administrative action is rendered. Interim assistance will be authorized effective with the first day after the applicable time limit expires. When the appeal involves more than one type of assistance, the appropriate agency will authorize an assistance benefit. 5
55 Pa. Code 275.4(d) (emphasis added). The applicable time limit for MA benefits is 90 days. 55 Pa. Code 275.4(b)(1). According to the rules governing statutory interpretation, words and phrases shall be construed according to their common and approved usage. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. 1903(a). When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. 1921(b). These principles apply when interpreting agency regulations. LaFond v. Dep t of Pub. Welfare, 933 A.2d 159 (Pa. Cmwlth. 2007); 1 Pa. Code 1.7. Based on a plain reading of the regulation, there is no ambiguity. Section 275.4(d) clearly provides the proper time frames and action to be taken when those time periods are not met. Specifically, the regulation authorize[s] the assistance which the appellant has requested in his appeal until final administrative action is rendered. 55 Pa. Code 275.4(d). This clause authorizes the type of assistance, in this case MA for long-term care. The next clause directs when the assistance requested begins: effective with the first day after the applicable time limit expires, in other words, on the 91st day after an appeal is lodged. Id. Interim assistance continues until a final adjudication is rendered. Easton argues the regulation describes the date when the Appellant qualifies for [i]nterim [a]ssistance benefits, not the date upon which the benefits are to begin, Pet r s Br. at 17, and it claims interim assistance begins on the date 6
of the application for benefits. In support, it cites Karpinkski v. Department of Public Welfare, 13 A.3d 1050 (Pa. Cmwlth. 2011). However, there is no discussion in the case that would arguably support Easton s interpretation. In Karpinski, a homeowner requested administrative review of the Department s decision denying him cash benefits under the Low Income Home Energy Assistance Program (LIHEAP) because his income exceeded the annual income limit. Like here, we determined the homeowner was not entitled to interim assistance under the same Department regulations, even though the Department did not hear the homeowner s appeal within 90 days of the notice of appeal of the decision denying him assistance. In Karpinski we explained the period in excess of 90 days occurred in the late spring, after the LIHEAP program year ended, when the LIHEAP assistance or interim assistance was no longer available. 4 Id. at 1053. Contrary to Easton s argument here, this language supports the interpretation that interim assistance takes effect after the 90-day time limit expires. Thus, neither the result nor the rationale in Karpinski supports Easton s position in this case. Moreover, the interpretation advanced by Easton would create an unjust disparity between appeals adjudicated within the 90-day period and those adjudicated beyond that period. Clearly, the purpose of the regulation is to 4 Unlike MA benefits, which are available year round, LIHEAP benefits are only available in a closed time frame as established by the Department depending on the availability of federal funding. 55 Pa. Code 601.6. 7
compensate an applicant for any delay occurring after the expiration of the prescribed 90-day adjudication period. Here, Easton filed its appeal on February 6, 2014. The Department did not render a final administrative action within the 90-day applicable time limit from the appeal date, which expired on May 7, 2014. Pursuant to the regulation, the Department provided interim assistance the first day after the applicable time limit expired. The first day after May 7, 2014 was May 8, 2014. Easton was not entitled to relief in the form of interim benefits for the period beginning November 14, 2013. Thus, in accordance with the regulation, the Department properly authorized interim assistance effective May 8, 2014. Accordingly, we affirm. ROBERT SIMPSON, Judge 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Reliant Senior Care Management, : Inc. d/b/a Easton Health and : Rehabilitation Center, : Petitioner : No. 1180 C.D. 2014 : v. : : Department of Public Welfare, : Respondent : O R D E R AND NOW, this 10 th day of March, 2015, the order of the Department of Public Welfare is AFFIRMED. ROBERT SIMPSON, Judge