ORDERS:
		
  ORDER
  STATEMENT OF THE CASE 
              This
    matter is an appeal by James Delaney (Appellant) from an Order of Dismissal of
    the South Carolina Department of Health and Human Services (DHHS) dated June
    19, 2008.  The Administrative Law Court (ALC) has jurisdiction to review this
    matter pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2008) and S.C. Code Ann.
    § 44-6-190 (2002).  Upon review of this matter, the DHHS’s Order of Dismissal is
    affirmed. 
  BACKGROUND 
              In a
    letter dated August 17, 2007, DHHS notified Appellant of its decision to recoup
    $116,105.07 in Medicaid overpayments made to Appellant.  Pursuant to 27 S.C. Code Ann.
    Regs. 126-152 (1976 & Supp. 2007), Appellant’s wife filed a notice of
    appeal with DHHS concerning the decision.  The notice of appeal was received by
    DHHS on September 14, 2007, and a fair hearing regarding the matter was
    scheduled for November 1, 2007.  Two days before the hearing, Appellant’s
    representative, Chuck Stewart, Sr., requested a 90-day continuance because
    Appellant’s wife was suffering from pain in her right knee related to
    osteoarthritis and a meniscal tear.  The continuance was granted, and the hearing
    was rescheduled for February 5, 2008. 
  Prior to the rescheduled hearing, Stewart again requested a continuance. 
    The hearing officer granted the continuance request and rescheduled the hearing
    for Monday, April 14, 2008. 
  On Friday, April 11, 2008, Stewart called
    the DHHS hearing officer and once again requested a continuance.  He stated
    that Appellant and his wife were unable to attend the hearing.  He further
    stated that he had purchased an airline ticket with his credit card so that he
    could attend the hearing, but that the airline went out of business and he was
    unable to secure another mode of transportation.  The DHHS hearing officer told
    Stewart that he would reschedule the hearing if he provided him with a copy of
    his credit card statement showing that he had purchased the ticket.  On April
    24, 2008, having not received a copy of Stewart’s credit card statement, the
    hearing officer issued an Order to Produce, directing Stewart to submit, by May
    16, 2008, his credit card statement verifying that he had purchased the airline
    ticket.  The Order contained the following warning: 
  Pursuant to the Department of Health and Human Services’
    Regulation §126-154, failure to comply with the terms of this Order will
    constitute grounds for dismissal against the non-complying party. 
              On May 16, 2008, DHHS
    received a “Reply to Order to Produce” from Stewart in which he claimed that
    “upon information and belief no record or credit card charge is available on
    this matter.”  Stewart also stated that Appellant and his wife were both
    “physically and emotionally incapacitated” and that they would be unable to
    attend or participate in a hearing regarding the matter.  Stewart further
    stated that, due to injuries that he had suffered in an automobile accident, he
    was “without certainty” as to when he could travel to South Carolina to represent
    Appellant.   
              On June 19, 2008, the
    hearing officer issued an Order of Dismissal pursuant to Regulation 126-154.  The
    hearing officer explained in part: 
  It has now been more than nine (9) months since Petitioner’s
    representative filed her appeal.  There have been three (3) scheduled hearings
    in which the Petitioner and/or his representative have asked for a continuance
    at the eleventh hour.  I realize that circumstances arise that cause
    individuals to be unable to come to a hearing; however, the facts in
    Petitioner’s case convince me that Petitioner’s representative is attempting to
    forego a hearing in order to avoid having to address the issue of the
    Respondent’s plan to recoup $26,265.89.  
  Appellant now
    appeals. 
  STANDARD
    OF REVIEW 
  Appeals from
    decisions of DHHS are heard pursuant to the Administrative Procedures Act
    (APA).  S.C. Code Ann. § 44-6-190 (2002); Estate of Nicholson ex rel.
    Nicholson v. S.C. Dep’t of Health and Human Servs., 377 S.C. 590, 594, 660
    S.E.2d 303, 304-05 (Ct. App. 2008).  Under the APA, the standard used by
    appellate bodies – including the ALC – to review agency decisions is provided
    by S.C. Code Ann. §1-23-380(5) (Supp. 2008).  See S.C. Code Ann. § 1-23-600(E)
    (Supp. 2008) (directing administrative law judges to conduct appellate review
    in the same manner prescribed in § 1-23-380).  That section provides: 
  The court may not substitute its judgment for the judgment of
    the agency as to the weight of the evidence on questions of fact.  The court
    may affirm the decision of the agency or remand the case for further
    proceedings.  The court may reverse or modify the decision [of the agency] if
    substantial rights of the appellant have been prejudiced because the
    administrative findings, inferences, conclusions, or decisions are:  
        (a)        in violation of constitutional or statutory
    provisions;  
        (b)        in excess of the statutory authority of the
    agency;  
        (c)        made upon unlawful procedure;  
        (d)       affected by other error of law;  
  (e)        clearly erroneous in view of
    the reliable, probative, and substantial evidence on the whole record; or  
  (f)        arbitrary or capricious or
    characterized by abuse of discretion or clearly unwarranted exercise of
    discretion.  
  S.C. Code Ann. § 1-23-380(5) (Supp. 2008). 
  DISCUSSION 
              Regulation 126-154
    provides that: 
  A Hearing Officer has the authority, among other things to:
    direct all procedures; issue interlocutory orders; schedule hearings and
    conferences; preside at formal proceedings; rule on procedural and evidentiary
    issues; require the submission of briefs and/or proposed findings of fact and
    conclusions of law; call witnesses and cross-examine any witnesses; recess,
    continue, and conclude any proceedings; dismiss any appeal for failure to
    comply with requirements under this Subarticle. 
  27 S.C. Code Ann. Regs. 126-154
    (1976) (emphasis added). 
              Decisions regarding the
    imposition of sanctions such as dismissal are reviewed on appeal under an abuse
    of discretion standard.  See Barnette v. Adams Bros. Logging, Inc.,
    355 S.C. 588, 586 S.E.2d 572 (2003); Halverson v. Yawn, 328 S.C. 618,
    493 S.E.2d 883 (Ct. App. 1997); Karppi v. Greenville Terrazzo Co., Inc.,
    327 S.C. 538, 489 S.E.2d 679 (Ct. App. 1997).  “The term ‘abuse of discretion’
    has no opprobrious implication and may be found if the conclusions reached by
    the lower court are without reasonable factual support.”  State v. Corey D.,
    339 S.C. 107, 118, 529 S.E.2d 20, 26 (2000).  The burden of showing an abuse of
    discretion is on the party challenging the trial court’s ruling.  First Sav.
    Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994); Halverson,
    328 S.C. at 621, 493 S.E.2d at 884. 
              In this case, Appellant
    does not specifically argue that the DHHS hearing officer abused his discretion
    by dismissing this case.  Moreover, Appellant does not cite any legal authority
    to support that proposition.  Therefore, the issue of whether the hearing
    officer abused his discretion in issuing his Order of Dismissal is not properly
    before this Court.  See ALC Rule 37(B)(1) (“Ordinarily, no point will be
    considered that is not set forth in the statement of issues on appeal.”); McLean,
    314 S.C. at 363, 444 S.E.2d at 514 (holding that appellant abandoned issue for
    which he failed to provide any specific arguments or supporting authority);  Shapemasters
    Golf Course Builders, Inc. v. Shapemasters, Inc., 360 S.C. 473, 480, 602
    S.E.2d 83, 87 n.4 (Ct. App. 2004) (“It is not necessary for this court to
    address Appellants’ remaining issues because Appellants fail to provide legal
    authority to support their arguments.”). 
              Furthermore, even if this
    issue were properly before this Court, Appellant has failed to meet his burden
    of showing an abuse of discretion.  “Mere allegations of error are not
    sufficient to demonstrate an abuse of discretion.”  McLean, 314 S.C. at
    363, 444 S.E.2d at 514.  Moreover, as the Court of Appeals has noted, there is
    a limit beyond which a court should not allow a litigant “to consume the time
    of the court and to prolong unnecessarily time, effort, and costs to defending
    parties.”  Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E.2d
    16, 19 (Ct. App. 1990).  In this case, Appellant was given “abundant
    opportunity” to litigate his case.  See id. 
              While Appellant does
    make several arguments regarding DHHS’s decision to recoup Medicaid payments
    made to Appellant, this Court acts in an appellate capacity when reviewing
    final decisions of DHHS and thus may only consider arguments that were raised
    to and ruled upon by the hearing officer.  See Jagar v. S.C. Dep’t of
    Health and Human Servs., No. 06-ALJ-08-0770-AP, 2007 WL 1933036, at *1 (S.C.
    Admin. Law Ct. June 7, 2007) (ALC reviews decisions of DHHS in an “appellate
    capacity”); see also Staubes v. City of Folly Beach, 339 S.C.
    406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot
    be raised for the first time on appeal, but must have been raised to and ruled
    upon by the trial court to be preserved for appellate review.”).  Because the
    hearing officer did not rule on Appellant’s arguments, they are not preserved
    for appellate review.  
   
  
  ORDER 
              IT IS THEREFORE ORDERED that DHHS’s Order of Dismissal
    is affirmed.  
              AND
    IT IS SO ORDERED. 
                                                                          ______________________________  
                                                                          RALPH K. ANDERSON, iii 
                                                                          Administrative
    Law Judge 
  February 19, 2009 
  Columbia, South Carolina 
 
 
  
  |