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Administrative Law Court
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SC Administrative Law Court Decisions

Edward Mims vs. SCDHHS

South Carolina Department of Health and Human Services

Edward Mims

South Carolina Department of Health and Human Services





This matter is an appeal by Edward Mims (“Mims”) from an Order of Dismissal of the South Carolina Department of Health and Human Services (“HHS”). HHS’s Order of Dismissal was issued pursuant to 27 S.C. Code Ann. Regs. 126-154 (1976) due to Mims’s failure to comply with the Hearing Officer’s Order dated November 30, 2006. Mims contends that the Hearing Officer erroneously dismissed this matter. The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of this matter, the Order of Dismissal is affirmed.


On September 27, 2006, Mims filed an appeal with HHS requesting a fair hearing. Mims appealed a letter from the South Carolina Department of Disabilities and Special Needs (“DDSN”) dated September 20, 2006 in which DDSN responded to multiple issues raised by Mims and requested additional information from Mims. The Hearing Officer scheduled the matter for a hearing on December 12, 2006 but later cancelled it pursuant to a pre-hearing conference on November 27, 2006. As a result of the pre-hearing conference, the Hearing Officer issued an Order dated November 30, 2006, requiring Mims to provide DDSN and the Hearing Officer with additional information by December 15, 2006 and the parties to submit proposed consent orders no later than January 2, 2007. That Order further stated that “[p]ursuant to the Department of Health and Human Services Regulation §126-154, failure to comply with the [] requirements of this Order may constitute grounds for dismissal against the non-complying party . . . .”

By letter dated January 2, 2007, DDSN informed the Hearing Officer that DDSN had not received any additional information from Mims, as required by the Hearing Officer’s November 30, 2006 Order. DDSN further requested that Mims’s appeal be dismissed for failure to comply with the Hearing Officer’s Order. By letter dated January 5, 2007, Mims provided the additional information to the Hearing Officer, three weeks after it was due.[1] On January 16, 2007, the HHS Hearing Officer dismissed Mims’s appeal for failure to comply with his previous Order. This appeal followed.


Although the Appellant cites multiple issues on appeal, they all concern whether the Hearing Officer erred by dismissing Mims’s appeal for failure to comply with the Hearing Officer’s November 30, 2006 Order.


As set forth above, this matter is before the ALC in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2006). Accordingly, the Administrative Procedure Act’s standard of review governs this appeal. See S.C. Code Ann. § 1-23-380(A) (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006). See S.C. Code Ann. § 1-23-380(B) (Supp. 2006) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380(A)). This 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(A)(5) (Supp. 2006).


For hearings regarding the Medicaid program, federal regulations provide that “[t]he agency may deny or dismiss a request for a hearing if (a) The applicant or recipient withdraws the request in writing; or (b) The applicant or recipient fails to appear at a scheduled hearing without good cause.” 42 C.F.R. § 431.223 (emphasis added). Further, HHS has promulgated state regulations concerning the conduct of hearings, which instill broad authority in the hearing officers. Regulation 126-154 states:

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).

Mims argues that the federal regulations provide the exclusive authority for the conduct of Medicaid-related hearings. Mims alleges that states must follow federal law and are not at liberty to impose more restrictive requirements on the distribution of Medicaid benefits. Further, he argues that, pursuant to 42 C.F.R. § 431.223, a matter may only be dismissed if Mims withdrew his request for a hearing or failed to appear at his hearing without good cause. Mims contends that the federal law preempts any state regulations and that since neither of these events took place, the Hearing Officer had no authority to dismiss Mims’s appeal.

The court disagrees. The federal regulation provides two grounds that an agency may dismiss an appeal. See, e.g., Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 593 S.E.2d 462 (2004) (providing that the use of the word “may” in statutory provisions is permissive and not mandatory). Further, the federal regulation is not so comprehensive that it preempts the state from passing regulations which are not contradictory. In this instance the state has promulgated regulations that provide additional grounds for dismissal and can be applied harmoniously with the federal regulations.

HHS can promulgate regulations governing the administration of hearings so long as they do not conflict with the federal regulations. See State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 187 525 S.E.2d 872, 877 (2000) (“Federal law may pre-empt a state law as follows: (1) Congress may explicitly define the extent to which it intends to pre-empt state law, (2) Congress may indicate an intent to occupy an entire field of regulation, or (3) federal law may pre-empt state law to the extent the state law actually conflicts with the federal law, such that compliance with both is impossible or the state law hinders the accomplishment of the federal law’s purpose.”). The language of 42 C.F.R. § 431.223 and 27 S.C. Code Ann. Regs. 126-154 do not contradict each other. Accordingly, the Hearing Officer had the authority to dismiss Mims’s appeal for failure to comply with his November 30 Order.

The Appellant has not shown that the Hearing Officer’s decision was arbitrary or capricious, an abuse of discretion, or otherwise violative of § 1-23-380(A)(5).[2]


For the reasons discussed above, the January 16, 2007 HHS Hearing Officer’s decision to dismiss Mims’s appeal was within the scope of his discretion and authority and is hereby affirmed. Any additional grounds for appeal raised by Mims that are not specifically discussed in this Order are denied.




Administrative Law Judge

November 9, 2007

Columbia, South Carolina

[1] Mims’s attorney attributed Mims’s failure to meet the Hearing Officer’s deadline to failing to docket it on her calendar.

[2] The court notes that the Order of Dismissal contained a section entitled “Findings of Fact.” The court interprets these to be merely a recitation of procedural history since the Hearing Officer’s order was not a Final Order and Decision following an evidentiary hearing such as would permit the Hearing Officer to engage in fact finding.


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