1 PROVIDER NAME/ADDRESS: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES PROVIDER S REPRESENTATIVE PROVIDER S WITNESS (ES) Care Pavilion Nursing and Rehab Center 1454 Fairfield Loop Rd. Crownsville, MD Sarah Hyde RECIPIENTS INVOLVED: DEPARTMENT REPRESENTATIVE DEPARTMENT WITNESS(ES) Bessie Davenport Kimberly Barge, Human Services Specialist Sup., DHS-OLTL CASE # DATE ADVERSE ACTION MAILED 11/19/2014 BHA ID NUMBER/BHA DOCKET NUMBERS/ISSUE CODES 51J DATE APPPEAL RECEIVED DATE APPEAL RECEIVED IR DUE DATE POSTMARKED AT DPW AT BHA 3/6/2015 3/6/2015 DATE SCHEDULING NOTICE MAILED RESCHEDULED TO DATE OF HEARING START TIME END TIME HEARING LOCATION TELEPHONE FACE TO FACE OTHER ORDER A hearing was properly scheduled to be conducted by an Administrative Law Judge. The Appellant was not available, nor did the Appellant provide good cause for not being available. Because the Appellant has failed to pursue the appeal, it will be DISMISSED in accordance with 55 Pa. Code Either party to this proceeding has thirty (30) calendar days from the date of this decision to request reconsideration by the Secretary of the Department. To seek reconsideration, you must fully complete the enclosed application/petition for reconsideration. The application/petition shall be addressed to the Secretary, but delivered to the Director, Bureau of Hearings and Appeals, P.O. Box 2675, Harrisburg, Pennsylvania, , and must be received in the Bureau of Hearings and Appeals within thirty (30) calendar days from the date of this Order. This action does not stop the time within which an appeal must be filed to Commonwealth Court. The applicant/petitioner shall serve a copy of the application/petition for reconsideration on the opposing party(ies). The appropriate party(ies), where permitted, may take issue with this Adjudication, and Order, and may appeal to the Commonwealth Court of Pennsylvania, within thirty (30) days from the date of this order. This appeal must be filed with the Clerk of Commonwealth Court of Pennsylvania, 601 Commonwealth Avenue, Suite 2100, P.O. Box 69185, Harrisburg, Pennsylvania If you file an appeal with the Commonwealth Court, a copy of the appeal must be served on the government unit which made the determination in accordance with Pa. R.A.P In this case, service must be made to: Department of Human Services, Bureau of Hearings and Appeals, 2330 Vartan Way, 2 nd Floor, Harrisburg, Pennsylvania , AND Department of Human Services, Office of General Counsel, 3 rd Floor West, Health & Welfare Building, Harrisburg, PA Bureau of Hearings and Appeals Final Administrative Action and Mailing Date 7/9/2015 Tracy L. Henry, Esquire Chief Administrative Law Judge Fn12/01/2014
2 cc: Care Pavilion Nursing and Rehab Center, Appellant Sarah Hyde, Appellant's Representative Kimberly Barge, Human Services Specialist Sup., DHS- OLTL File
3 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES BUREAU OF HEARINGS AND APPEALS IN THE APPEAL OF: Care Pavilion Nursing and Rehab Center 1454 Fairfield Loop Rd. Crownsville, MD Docket No.: 51J ADJUDICATION Procedural History On March 6, 2015, the Appellant filed a Request for Hearing (Request) with the Bureau of Hearings and Appeals (BHA). The Appellant appealed the Office of Long Term Living s November 19, 2014 Notice of Decision (Notice) regarding Log No Issue Whether abandon the above-docketed appeal by failing to comply with regulations related to responses to orders to show cause. Findings of Fact 1. On March 6, 2015, the Appellant filed its Request with the BHA. 2. On March 27, 2015, the BHA issued a Rule to Show Cause (Rule) ordering the Appellant to show cause why the appeal should not be dismissed as untimely filed as it was filed more than thirty-three (33) days from the date of the Notice. 3. The March 27, 2015 Rule further directed the Appellant to file a Response within ten (10) days of the date of the Rule which addressed the above mentioned issues. 4. The Rule to Show Cause specifically stated: If you fail to file an answer within the time allowed, you shall be deemed in default, relevant facts stated in the Rule may be deemed admitted by you and the above-captioned matter may be dismissed for abandonment. 5. The Appellant did not respond to the Rule within ten (10) days after the mailing date of the Rule. 6. The March 27, 2015 Rule was mailed to the address of record. 7. The March 27, 2015 Rule was not returned to the BHA as undeliverable.
4 8. To date, the BHA has received no response from the Appellant. 9. As of the date of this Adjudication, the BHA has not received any pleadings or other correspondence from the Appellant since March 6, 2015, when the Request was filed. Applicable Law: The following two sections of 55 Pa. Code apply to this appeal: Timeliness and perfection of requests for hearing (a) Except as permitted in (relating to appeals nunc pro tunc), the Bureau lacks jurisdiction to hear a request for hearing unless the request for hearing is in writing and is filed with the Bureau in a timely manner, as follows: (1) If the program office gives notice of an agency action by mailing the notice to the provider, the provider shall file its request for hearing with the Bureau within 33 days of the date of the written notice of the agency action. (2) If written notice of an agency action is given in a manner other than by mailing the notice to the provider, a provider shall file its request for hearing with the Bureau within 30 days of the date of the written notice of the agency action. (b) If a provider files a request for hearing by first-class mail, the United States postmark appearing upon the envelope in which the request for hearing was mailed shall be considered the filing date of that request for hearing. If the provider files a request for hearing in another manner, or if the envelope in which the provider s request for hearing was mailed bears a postmark other than a United States postmark, the date the request for hearing is received in the Bureau will be considered the filing date. On March 27, 2015, the BHA issued a Rule which gave the Appellant ten (10) days from the date of the mailing of the Rule to dispute that the Request should be dismissed as untimely filed as it was filed more than thirty-three (33) days from the date of the Notice. According to the mailbox rule, if a document is properly mailed, the court will presume the United States Postal Service delivered the document to the addressee in the usual time. Rosenthal v. Walker, 111 U.S. 185, 193, 4 S. Ct. 382, 28 L. Ed. 395 (1884); see also Hagner v. United States, 285 U.S. 427, 430, 52 S. Ct. 417, 76 L. Ed. 861 (1932). In this case, the BHA mailed the Rule the same day it was issued, during the regular course of business, to the Appellant at the address of record. The Appellant did not respond to the Rule and the document was not returned to the BHA as undeliverable.
5 Therefore, it is presumed that the March 27, 2015 Rule was delivered to the Appellant in the usual time. The Appellant did not respond to the BHA s March 27, 2015 Rule within ten (10) days and, in fact, did not respond at all. The Appellant did not comply with the regulations at 1 Pa. Code and related to orders to show cause. Appellant has been afforded sufficient time and opportunity to comply with the Rule yet has failed to do so or ask for an extension of time within which to do so. The failure of an Appellant to respond to a Rule justifies dismissal of the appeal. Greensburg Nursing and Convalescent Center v. Pennsylvania Department of Public Welfare, 633 A.2d 249, 252 (Pa. Cmwlth. 1993). Thus, the Appellant s failure to comply with or in any way respond to the Rule warrants dismissal of the appeal. Accordingly, this appeal request should be dismissed. Conclusion The Appellant failed to respond to the BHA s March 27, 2015 Rule within the ten (10) day timeframe allowed and accordingly, the Appellant s appeal must be DISMISSED.
6 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES BUREAU OF HEARINGS AND APPEALS IN THE APPEAL OF: Care Pavilion Nursing and Rehab Center 1454 Fairfield Loop Rd. Crownsville, MD Docket No.: 51J RECOMMENDATION It is hereby RECOMMENDED that the above-captioned appeal be DISMISSED as abandoned because the Appellant did not respond to the BHA s March 27, 2015 Rule within the ten (10) day timeframe allowed as required by 1 Pa. Code 35.14, July 7, 2015 Date Gueysha O. Carmona-Tirado, Esq. Administrative Law Judge Provider Appeals Perfector Bureau of Hearings and Appeals
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