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
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