South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
James Delaney vs. SCDHHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
James Delaney

Respondents:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
08-ALJ-08-0361-AP

APPEARANCES:
n/a
 

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[1] 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



[1] The amount was later changed to $26,265.89.


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