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Muma v. Pennsylvania Department of Health

Commonwealth Court of Pennsylvania

December 18, 2019

Nicholas Muma, Petitioner
v.
Pennsylvania Department of Health, Division of Nursing Care Facilities, Respondent

          Argued: September 10, 2019

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION

          RENÉE COHN JUBELIRER, JUDGE.

         Nicholas Muma (Petitioner) petitions for review of a Memorandum Opinion and Order of a Hearing Officer of the Pennsylvania Department of Health, Division of Nursing Care Facilities (Department), denying Petitioner's Request for a Hearing and Application to file Appeal Nunc Pro Tunc (Application) and granting the Department's Motion to Quash Appeal as Untimely (Motion to Quash). The Department entered a finding of abuse on the Nurse Aide Registry (Registry) for Petitioner when it did not timely receive Petitioner's request for a hearing. Petitioner filed the Application, seeking to proceed, nunc pro tunc, on a request for an administrative hearing filed one day after the deadline and argues the Hearing Officer abused his discretion or committed an error of law in denying that request. After careful review, we find the Department's process here is not in accordance with the plain language of the Pennsylvania General Rules of Administrative Practice and Procedure (GRAPP), [1] and that the Department abused its discretion when, applying nunc pro tunc appeal standards, it denied Petitioner's untimely request for an initial hearing. We therefore vacate and remand for the Department to conduct the hearing that Petitioner seeks.

         I. Factual Background

         a. The Department and the Social Security Act

         In order to understand the Department's actions with regard to Petitioner, it is necessary to review the Department's obligations and procedures for maintaining the Registry. The Department is responsible for ensuring skilled nursing facilities[2]in Pennsylvania that participate in Medicare and Medicaid programs are in compliance with federal requirements set forth in Section 1396r of the Social Security Act, 42 U.S.C. § 1396r. As part of its obligations under the Social Security Act, the Department is required to establish and maintain the Registry, which is a list of all individuals who have completed nurse aide training. The Department must report on the Registry any findings of resident neglect or abuse. Upon reviewing and investigating any allegations of neglect or abuse in a skilled nursing facility by a nurse aide, the Department

shall, after providing the individual involved with a written notice of the allegations (including a statement of the availability of a hearing for the individual to rebut the allegations) and the opportunity for a hearing on the record, make a written finding as to the accuracy of the allegations. If the State finds that a nurse aide has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the [R]egistry of such finding.

42 U.S.C. § 1395i-3(g)(1)(C). The Department follows GRAPP for this purpose by issuing orders to show cause to give notice of allegations. 1 Pa. Code § 35.14. If the Department ultimately enters a determination of abuse on the Registry for an individual, skilled nursing facilities are prohibited from employing those individuals. 42 U.S.C. § 1396r(b)(5)(C).

         b. Order to Show Cause and Final Determination

         The Department notified Petitioner by Order to Show Cause mailed July 13, 2018, that, after investigation, the Department determined that Petitioner engaged in two instances of misconduct involving abuse of residents while Petitioner was working as a nurse aide at "a long term nursing care facility certified to participate in the Medicare program and governed by Federal and State regulations." (Certified Record (C.R.) at 58.) The Order to Show Cause advised Petitioner:

In accordance with the [GRAPP], 1 Pa. Code §[]35.14, you must show cause why each of these determinations should not be entered on the Registry. You may do so by requesting an administrative hearing and presenting your arguments to a hearing officer as to why each of the Division's determination[s] [are] in error. If you want a hearing, you must file the attached Notice of Request for a Hearing (ATTACHMENT A) within 30 calendar days of the Date of Mailing of this Order . . . .
. . . .
Failure to request a hearing by returning the attached Notice of Request for a Hearing form as instructed will be considered a waiver of all objections to the determination(s) detailed in this Order and will result in the determination(s) being entered in the Registry.

(Id. at 58-59.)

         Having received no request for a hearing by Petitioner within 30 days, the Department, by letter dated August 15, 2018 (Final Determination), notified Petitioner that the determinations as to his misconduct were entered on the Registry. The Department advised Petitioner that the entry of these determinations on the Registry prohibited him "from future employment in any nursing facility," as well as "participati[on] in re-training programs, re-testing, and obtaining registry numbers." (Id. at 49 (emphasis omitted).)

         c. Untimely Hearing Request and Counsel's Letter

         Also on August 15, 2018, the Department received via fax Petitioner's request for a hearing dated August 14, 2018, filed by Petitioner's former counsel (Former Counsel), wherein Petitioner challenged the factual basis for the determinations in the Order to Show Cause. Shortly thereafter, the Department received a letter dated August 29, 2018 (Counsel's Letter) from Petitioner's current counsel (Counsel). Counsel stated that Petitioner contacted him following receipt of the Department's Final Determination. Counsel explained that Petitioner entered into a fee agreement with Former Counsel for representation at the Department Hearing. Attached to Counsel's Letter was a receipt for Petitioner's $500 payment to Former Counsel and a copy of his cancelled check for that amount, both dated August 1, 2018. (Reproduced Record (R.R.) at 8a-9a.) Also attached was a fee engagement letter dated and signed by both Petitioner and Former Counsel on August 1, 2018. The fee engagement letter provides that Former Counsel will represent Petitioner in his "Administrative Hearing." (Id. at 6a-7a.) Counsel further explained that Petitioner believed he was being properly represented by Former Counsel and was surprised when he received the Final Determination. According to Counsel's Letter, Petitioner then tried to contact Former Counsel, but was unsuccessful, as Former Counsel "was not taking [Petitioner's] calls." (C.R. at 45.) Petitioner then contacted Counsel.

         In light of these circumstances, Counsel requested the Department either (1) "accept the request for a hearing that was apparently filed two days[3] late by [Former Counsel]," or (2) "given the explanation provided in this letter, which seems to clearly indicate that the late filing was not the fault of [Petitioner, ] . . . consider this letter as a request nunc pro tunc for a hearing." (Id.) If a formal motion or petition was required, Counsel indicated he would prepare one. Counsel requested a representative from the Department to call or email him in response to Counsel's Letter. Counsel faxed Counsel's Letter to the Department on August 29, 2018, and emailed the same to a representative at the ...


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