Abdul-Akbar v. DHSS Hearing Office

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEBRO ABDUL-AKBAR,
C.A. No. Nl 8A-02-004 RRC

Appellant

V.

DHSS HEARING OFFICE
AND HEALTH OPTIONS,

Appellee

Submitted: August 1, 2018
Decided: September 11, 2018

On Appellant Debro Abdul-Akbar’s Appeal Of Delaware Department of Health
and Social Services Fair Hearing Decision. APPEAL DISMISSED.

MEMORANDUM OPINION

Debro Abdul-Akbar, Wilmington, Delaware, Appellant, pro se

Geoffrey G. Grivner, Esquire, Buchanan, Ingersoll & Rooney, P.C., Wilmington,
Delaware, Attorney for Appellee, Health Options.

COOCH, R.J.

I. INTRODUCTION

Before the Court is Appellant Debro Abdul-Akbar’s Appeal of the Decision
of the Fair Hearing Officer (“FHO”) on behalf of the Delaware Department of Health
and Social Services (“DHSS”). The FHO upheld a denial of Appellant’s request of
60 hours per Week of Self-Directed Attendant Care (“SDAC”). Highmark Health
Options (“Health Options/Appellee”) is the contracted provider and servicer of
DHSS’s Medicaid pro gram.l Health Options originally set Appellant’s SDAC needs
at 28 hours per Week. On July 25, 2017, Health Options denied Appellant’s request
to increase SDAC to 60 hours per vveek.2 Appellant’s appeal stems from this initial
denial.

The threshold issue at this stage is Whether Appellant has met his burden under
31 Del. C. §520 to establish that his appeal to this Court Was timely filed.3 The Court
finds that Appellant’s appeal Was not timely. The appeal is dismissed

II. FACTS AND PROCEDURAL HISTORY

The record indicates that Appellant is a 58-year-old man diagnosed With
several medical conditions including diabetes, hypertension, heart disease, asthma,
cyclical vomiting syndrome, Hepatitis C, celiac disease, and liver disease. Despite
numerous medical conditions, Appellant is occasionally able to function on his
own,4 but often requires assistance With daily activities such as bathing, cooking,
cleaning, and laundry. Appellant’s Wife handles much of his care When he is unable
to function solely on his oWn. Appellant also receives care under the SDAC
program, a DHSS Medicaid program intended to assist disabled patients With
ambulation, assistive devices, Wound dressing, bathing, etc.

As of July 2017, Appellant received 28 hours per Week of SDAC. Appellant
apparently believed more hours should be ordered to help him With numerous daily
activities. Through his physician Dr. Karlo Magat, Appellant requested an increase
in SDAC to 60 hours per Week; a 32-hour increase On July 25, 2017, Health Options

l The Court is unsure of the correct business name of Appellee. The record indicates that
“Highmark Health Options is an Independent Licensee of the Blue Cross and Blue Shield
Association.” Appellee’s Answ. Br. in Opp’n of Appeal, Ex. A at 1.

2 Appellee’s Answ. Br. at 2.

3 See 31 Del. C. §520. Section 520 requires an appellant to file a notice of appeal Within 30 days

of the underlying administrative agency’s detennination.
4 See Appellcc`s Ansvv. Bi.', EX. H at 11.

denied Appellant’s request as “not medically necessary.”5 (“July Denial”) Appellant
requested an appeal of the July Denial on July 31, 2017. Health Options held an
internal appeal on August 23, 2017 Which upheld the July Denial. Appellant
requested a State Fair Hearing on September 12, 2017. The Fair Hearing began on
October 12, 2017. On January 8, 2018, after a continuance to gather more medical
records, the FHO upheld the July Denial. Appellant filed the present appeal on
February12,2018.

III. PARTIES’ CONTENTIONS
A. Appellant Mr. Abdul-Akbar’s Contentz`ons

Appellant first contends he has “suffered gross negligence” from the
“hearings parties thus far[.]”6 Second, Appellant asserts Health Options committed
“gross medical malpractice” by permitting a nurse to “essentially prescribe
treatment.”7 Lastly, Appellant contends the FHO ignored claims of discrimination
Appellant asserts the July Denial “Was made due to racial and religious
discrimination because he is a black man and a Muslim.”8

Procedurally, Appellant acknowledges that his pro Se status hampers his
ability to submit a more formal brief in support of his appeal. Appellant requests that
the Court provide a transcript of all hearings and “all records Health Options and the
[FHO] refused to put on the record[,]” so that he may “prepare a brief.”9 Finally,
Appellant requests the Court appoint him counsel.

B. Appellee Health Options’ Contentz`ons

Appellee first asserts that Appellant’s appeal is untimely because he missed
the 30-day deadline to file his appeal.10 Addressing Appellant’s procedural claims,
Appellee contends that Appellant does not have a right to an attorney in a State Fair
Hearing. Appellee also states Appellant had an option to obtain the recordings and

5 Appellee’s Answ. Br. at 4.

6 Appellant’s Br. in Support of Appeal, at 1. In support of his assertion, Appellant contends the
FHO refused to order a complete request for discovery after Appellant notified the FHO some
documents Were not produced. See id.

7 Id. at 2; see Appellant’s Reply Br. at 1-3.

8 Appellee’s Answ. Br., EX. H at 9.

9 Appellant’s Br. at 3.

10 Appellee’s Ans'w; Br. at 8.

transcripts of the Fair Hearing at his own expense, but elected not to do so.
Furthermore, Appellee argues there is no evidence the FHO acted in a discriminatory

maDIlCI`.

Finally, even if the Court were to address the merits of Appellant’s appeal,
Appellee contends the FHO’s decision was free of legal error and supported by
substantial evidence.11

IV. DISCUSSION

A. Appellant’s appeal is untimely under 31 Del. C. §520 and must be
dismissed

While the Court otherwise has subject matter jurisdiction of this appeal, the
appeal was not timely filed. Section 520 states “[an] appeal shall be filed within 30
days of the day of the final administrative decision.”12 “Generally, if a party fails to
perfect an appeal within the statutorily mandated period, a jurisdictional defect
results, thereby preventing the appellate court from exercising jurisdiction.”13 It is
well established in Delaware that in construing language of a statute, Courts attempt
to determine and give effect to the legislative intent.14 There is no indication from
the language of the statute that there are circumstances which would extend the 30
day time period of the statute.15 Nor has Appellant shown any good cause as to why
the Court should extend the time period for his case. Thus, the 30-day time period is
absolute.

The Court lacks jurisdiction to decide a direct appeal that is untimely, and
jurisdictional defects cannot be waived.16 There is no remedy for an untimely appeal,
as the Court lacks jurisdiction.17 Under Superior Court Civil Rule 72(i), the Court
has discretion to dismiss any appeal saa sponte, or on a motion to dismiss by any

11 ]a'. at 10 (citing Urban v. Meconi, 930 A.2d 860, 865 (Del. 2007)).

12 31De1_ C. §520.

13 Preston v. Ba'. oan'justment ofNew Castle County, 772 A.2d 787, 791 (Del. 2001).

14 Malawi v. PHI Services Co., 2012 WL 6945506, at *2 (Del. Super. Oct. 12, 2012) (citing
Ingram v. Thorpe, 747 A.2d 545, 547 (Del. 2000); State v. Cephas, 637 A.2d 20, 23 (Del. 1994)).
15 “If that had been the intent of the General Assembly, that language would have been included
within the statute.” Malawi, 2012 WL 6945506, at *2.

16 Eller v. State, 531 A.2d 951, 953 (Del. 1987).

17 Eller, 531 A.2d at 951; Irvin-Wright v. State, 2003 WL 21481004, at *3 (Del. Super. June 16,

2003). » 1

party.18 Among other reasons stated in the rule justifying a dismissal, “[d]ismissal
may be ordered for untimely filing of an appeal ...”19

In this case, Mr. Abdul-Akbar filed his appeal four days after the 30-day
deadline. The FHO, on behalf of DHSS, rendered a final decision on January 8, 2018.
Thus, Appellant was required to file a notice of appeal on or before February 8, 2018,
or risk waiving any right to further appeal. Appellant filed the appeal on February
12, 2018. Despite missing the deadline, Appellant believes “[n]o Court should hold
pro se, untrained litigants to [the] str[i]ngent requirements” that bind “well trained
and well paid attorney[]s.”20 Unfortunately, as discussed above, the Court cannot
extend the 30-day deadline for Appellant. His appeal must be dismissed

As the Court determines the appeal is untimely, it does not reach any decision
on the merits of Appellant’s or Appellee’s other arguments
VI. CONCLUSION

For the foregoing reasons, Appellant Debro Abdul-Akbar’s Appeal is
DISMISSED.

Wier MD~A_

Richard R. Cooch, R.J.

cc: Prothonotary
DHSS Hearing Office
P.O. Box 906,
New Castle, Delaware 19720
AWW NO: 8005829386

18 Super. Ct. Civ. R. 72(i).
19 Id.
711 '1‘rppellant’s Reply Br. at 5.