The opinion of the court was delivered by: Doris A. Smith-ribner, Judge
AND NOW, this 10th day of June, 2009, the Court hereby grants the Application filed by Department of Public Welfare to Report Unreported Opinion, and it orders that the attached opinion filed March 23, 2009 shall be designated "OPINION" rather than "MEMORANDUM OPINION" and shall be reported.
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Church of God Home, Inc., (CGH), a long-term nursing care facility, petitions the Court for its review of the July 2, 2008 final order of the Secretary of the Department of Public Welfare (DPW). Secretary Estelle B. Richman upheld the order of the Bureau of Hearings and Appeals (Bureau), which dismissed on grounds of res judicata and lack of timely filing an appeal of the CGH from denial of an application for Medical Assistance (MA) benefits for its resident Bertha E. Stone (Stone).*fn1 The CGH raises fair hearing and due process arguments.
Stone is 102 years old. On November 14, 2000, she signed a durable power of attorney appointing her daughter Edith C. Eckart as her authorized agent and her granddaughter Mary L. Gross as replacement if Eckart is unable, unwilling or unavailable to act. Stone was admitted to the CGH on October 21, 2002, and Eckart signed the agreement for Stone's admission. Due to her alleged insolvency, Eckart applied for MA benefits on Stone's behalf. On March 7, 2007, the Cumberland County Assistance Office (CAO) sent a denial notice rejecting the application on the grounds that Stone failed to provide documents to verify her income and resources. Eckart timely appealed on March 22, 2007, and at a May 9, 2007 Bureau hearing Eckart and Gross entered into a Stipulation of Settlement (Stipulation) with the CAO, which stated that the denial notice would stand unless Eckart provided verification information by May 23, 2007.*fn2
The Stipulation was adopted in an order entered by the Bureau's Administrative Law Judge (ALJ), and it was affirmed by the Chief ALJ in a final administrative action order declaring the matter to be "SETTLED AND ENDED." Reproduced Record (R.R.) at 3a; May 10, 2007 order. Eckart failed to submit any information by May 23, 2007, and the March 7 denial notice stood.
The CGH appealed the denial notice on December 21, 2007. On March 14, 2008, the Bureau mailed a Rule to Show Cause, prompting the CGH to explain why its appeal should not be dismissed as untimely filed. One week later, the CGH responded that the appeal was untimely filed because Stone "did not have a representative to act on her behalf" and that when the notice was issued Stone "could not appeal the denial because she suffers from dementia and is not able to take care of her financial affairs." Supplemental Certified Record, March 21, 2008 CGH Response. On March 26 the Bureau dismissed the appeal, and DPW upheld the Bureau's order and adopted its reasoning as follows:
A review of appeal [on March 22, 2007] revealed that at the time the March 7, 2007, notice was issued the Appellant was being represented by her daughter, Edith Eckart and her granddaughter, Mary Gross. In fact, the original appeal which was filed timely was filed by Edith Eckart. According to the regulations at 55 Pa. Code § 275.3(b), non Food Stamp appeals must be filed within 30 days of the Department/provider notice.. In the instant case, the appeal filed . on December 21, 2007, was not filed in a timely manner. The [Bureau] has no further jurisdiction according to the regulations at [55 Pa. Code §275.4(h)(3)(iv)] and the appeal will be dismissed as Res Judicata and untimely filed.
R.R. at 7a, Bureau's March 26, 2008 Adjudication.*fn3
The CGH contends that Eckart and Gross abandoned their obligations under the Stipulation to provide the outstanding verifications to the CAO to qualify Stone for MA benefits. The CGH asserts that this abandonment effectively left Stone without representation to appeal the denial of MA benefits. Stone's lack of a representative resulted in her being deprived of a fair hearing and denial of due process. Also, the CGH filed a guardianship petition with the Cumberland County Orphans' Court on May 12, 2008; the court appointed Good News Consulting, Inc. as Stone's guardian on June 16, 2008; and Stone lacked a representative until that date. Under 55 Pa. Code §275.3 and Clark v. Department of Public Welfare, 427 A.2d 712 (Pa. Cmwlth. 1981), due process includes the right of representation.
The CGH claims that the CAO should have known that Stone was not being effectively represented by Eckart and Gross given their lack of cooperation and that under these circumstances the CAO should have obtained a representative for Stone. The regulation at 55 Pa. Code §163.3(a)(2)(i) provides as follows:
The County Office will decide, in determining initial or continued eligibility of a client, whether or not he is mentally capable of carrying out the responsibilities related to eligibility for assistance. If the County Office decides the client is mentally incapable of carrying out eligibility responsibilities, the County Office will request a guardian or trustee for the client..
DPW counters that the CGH filed its appeal 259 days after the appeal deadline. In H.D. v. Department of Public Welfare, 751 A.2d 1216 (Pa. Cmwlth. 2000), the Court explained that failure to timely appeal an administrative agency's action constitutes a jurisdictional defect and that the time for filing an appeal may not be extended as a matter of grace or mere indulgence. DPW notes that under 55 Pa. Code §275.2, a request for a hearing is an expression by "the client or the person acting for him" and that under Chichester Kinderschool v. Department of Public Welfare, 862 A.2d 119 (Pa. Cmwlth. 2004), appeals and hearings are authorized only for public assistance applicants or their authorized representatives. DPW recounts the involvement of Eckart and Gross and submits that their failure to provide information does not establish abandonment or a deprivation of due process. Additionally, the CGH could have sought Eckart's ...