HCR ManorCare v. Department of Public Welfare

DISSENTING OPINION BY

Judge PELLEGRINI.

The majority remands to the Bureau of Hearings and Appeals (BHA) of the Department of Public Welfare (DPW) for a determination as to whether HCR Manor-Care, Old Orchard Health Care Center (ManorCare) has the authority to take an appeal on behalf of Alma Kenney (Mrs. Kenney) from a denial of her request for medical assistance benefits.' It does so even though ManorCare has asked us to decide this appeal on the record before us. Because it has not raised on appeal or anywhere else that it has authority to represent Mrs. Kenney, I respectfully dissent.

In October 2005, Mrs. Kenney was admitted to ManorCare. In May 2006, Mrs. Kenney executed a power of attorney that named her daughter (Daughter) as her representative. In May 2007, as Mrs. Kenney’s agent, Daughter submitted an application for Medical Assistance — Long Term Care (MA-LTC) to the Northampton County Assistance Office (CAO) of the Pennsylvania Department of Public Welfare (DPW). Upon attending an interview at the CAO, Daughter provided some of the information needed in order to determine Mrs. Kenney’s eligibility for MA-LTC, but failed to provide all of the information necessary. She agreed to provide the additional information by July 6, 2007. Daughter, however, failed to provide the information needed to verify Mrs. Ken-ney’s resources by the July 6, 2007 date. On August 3, 2007, the CAO issued a PA-162A Denial Notice (Notice) rejecting Mrs. Kenney’s application for benefits. On August 22, 2007, Daughter filed an appeal of the August 3, 2007 Notice.

Earlier, on August 13, 2007, ManorCare had faxed its own appeal of the Notice to the CAO. The CAO found the fax incomplete and illegible and attempted to contact ManorCare as to the contents of the appeal and did not receive a notice of her appeal. According to the CAO, Manor-Care never returned those phone calls. On November 13, 2007, the CAO contacted ManorCare to inform it that its appeal had not been forwarded, but that Daughter’s appeal had been forwarded to the BHA and a hearing was scheduled for November 14, 2007.

Prior to the start of the hearing, the Administrative Law Judge (ALJ) was informed that both Daughter and Manor-*9Care had appealed the August B, 2007 Notice. At the hearing, the ALJ asked Daughter if she wanted to authorize Man-orCare to represent her. Daughter declined and stated that she did not want ManorCare representing her mother and explained that she was Mrs. Kenney’s authorized agent and would be responsible for securing the information required by the CAO. Additionally, the ALJ informed the CAO that the BHA’s appeal perfector would determine whether ManorCare should be granted a hearing and instructed the CAO to forward ManorCare’s appeal to the BHA on November 14, 2007. Man-orCare was then informed that its appeal had been forwarded.

At the November 14, 2007 hearing, Daughter entered into a Stipulation Settlement (Settlement) with the CAO to provide the necessary information to the CAO by December 21, 2007. Under the Settlement, if Daughter failed to provide the information requested by December 21, 2007, the August 3, 2007 Notice would stand. Daughter subsequently failed to provide the requested information by December 21, 2007, and the BHA upheld the CAO’s August 3, 2007 Notice.

On December 31, 2007, the BHA issued a final administrative action order dismissing ManorCare’s appeal finding, among other things,1 that it was not entitled to a hearing because it was not authorized to take an appeal by Mrs. Kenney to challenge the denial of benefits. On January 14, 2008, ManorCare filed a petition for reconsideration with the Secretary of DPW. (Reproduced Record at 9a-10a.) Nowhere in that request for reconsideration did it mention that it had any authorization to take an appeal on behalf of Mrs. Kenny and it does not appear that it was raised anywhere else below.

ManorCare then took an appeal to this Court.2 In March 2008, DPW filed an application for an order to remand with this Court to address the issues associated with ManorCare’s appeal. ManorCare filed an answer stating in the “wherefore” clause that:

Petitioner HCR ManorCare — Old Orchard Health Care Center requests this Honorable Court deny DPWs Application for Remand and decide the current Petition for Review on its merits or, alternatively, if it sees fit to grant the Application for Remand that this Court specifically limit the appeal hearing to the issue of whether the submission has occurred of the verification necessary for a determination of eligibility in relation to the appeal of the August 3, 2007, Notice of Denial for lack of verification, and that the CAO, DPW and the BHA be specifically precluded at that hearing from raising issues not previously raised or preserved, because to allow DPW to raise unpreserved “new” issues will simply cost HCR more time and money and will be a violation of HCR’s Due Process *10Rights which may ultimately result in this case being right back in front of this Honorable Court.

Attached to the ManorCare answer was an admission agreement signed September 30, 2005, and attached to that was an authorization statement signed by Daughter as a “responsible party” “irrevocably” authorizing ManorCare to take all actions necessary to secure medical assistance for her mother. [It is not included in Manor-Care’s reproduced record or mentioned in its briefs.] Acceding to ManorCare’s request, on June 6, 2008, this Court denied DPW’s request for an order to remand.

In its statement of questions, Manor-Care raises only two issues which are:

I. Did the Appellant suffer prejudice resulting from the untimely submission of its appeal of the denial of medical assistance benefits by the Northampton County Assistance office to the Pennsylvania Department of Public Welfare?
SUGGESTED ANSWER: YES.
II. Did the Department of Public Welfare commit an error of law by dismissing ManorCare’s appeal based upon Res Judicata ?
SUGGESTED ANSWER: YES.

The majority vacates the BHA’s order dismissing its appeal because it finds that the authorization agreement may give ManorCare the right to take an appeal on Mrs. Kenney’s behalf and remands to the Department to conduct a hearing to determine whether it has that authority. Simply, because that issue is not raised in the statement of questions or even raised in the body of the brief or raised before BHA, it is waived.

As to the issues raised, ManorCare contends that under 55 Pa.Code § 275.4(a)(3)(v),3 once it filed a timely appeal to the CAO’s denial of benefits to Mrs. Kenney, that appeal had to be forwarded to the Office of Hearings and Appeals within three working days of receipt. Because that appeal was not forwarded within the three working-day time period, ManorCare argues that it was denied due process causing it not to be reimbursed for care it provided because of the denial of MA-LTC benefits for Mrs. Kenney. However, there is no requirement that DPW forward to the Office of Hearings and Appeal a notice of hearing within three days when its fax was incomplete and illegible. Nonetheless, it was ultimately forwarded to BHA for hearing.

Under DPW’s regulations, ah individual applying for MA-LTC benefits may either apply on his/her own behalf or choose to have someone represent him/her during the application process. 55 Pa.Code § 125.84. If an individual is incapacitated, a guardian or other legal representative who is available is expected to apply on behalf of the applicant. 55 Pa.Code § 125.84(a)(6). An appeal from the denial of a request is separate and distinct from the MA-LTC application process. Under the applicable DPW regulations, an “appellant” is the applicant or recipient who has requested the hearing and signed the appeal, and a request for a hearing is “an expression, oral or written by the client or the person acting for him, such as his legal representative, relative or friend.” 55 Pa. Code § 275.2. Accordingly, appeals and hearings are only authorized for applicants or recipients of public assistance or their *11authorized representatives. See Beverly Healthcare v. Department of Public Welfare, 828 A.2d 491 (Pa.Cmwlth.2003).

In the present case, Mrs. Kenney executed a power of attorney naming Daughter as her sole authorized agent, and Daughter made the necessary applications for MA-LTC benefits for Mrs. Kenney. While those applications were ultimately denied, a nursing home such as Manor-Care is only authorized to file an appeal of a denial of MA-LTC benefits if it has obtained a written and signed authorization statement from the appellant, in this ease, Mrs. Kenney, or an authorized representative. See Chichester Kinderschool v. Department of Public Welfare, 862 A.2d 119 (Pa.Cmwlth.2004); Beverly Healthcare, 828 A.2d 491 (Pa.Cmwlth.2003). Because ManorCare never provided any evidence that it had authorization to take an appeal on Mrs. Kenney’s behalf, BHA had no basis to find that ManorCare had authority to represent Mrs. Kenny and properly dismissed ManorCare’s appeal.

Accordingly, I respectfully dissent.

. BHA also dismissed ManorCare's appeal as res judicata because it was bound by the final adjudication of the issue in Daughter’s appeal. In this appeal, ManorCare contends that the requirements of res judicata /collateral estoppel were not satisfied. Because of the way we have resolved this matter, we need not address this issue.

. On January 14, 2008, ManorCare filed a petition for reconsideration with the Secretary of DPW and on January 30, 2008, Manor-Care filed a petition for review with this Court. The Secretary denied ManorCare’s petition for reconsideration on February 7, 2008. In March 2008, DPW filed an application for an order to remand with this Court to address the issues associated with Manor-Care’s appeal, specifically, that ManorCare did not have the authority to file an appeal on Mrs. Kenney’s behalf. On June 6, 2008, this Court denied DPW’s request for an order to remand.

. That section states in relevant part:

(3) [a]gency staff responsibility upon receipt of a hearing request will be as follows:
(v) Appeals to be scheduled for a hearing must be forwarded to the Office of Hearings and Appeals within 3 working days from the date the appeal was received and date stamped ...