South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Janie L. Doughty vs. SCDHHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
Janie L. Doughty

Respondents:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
01-ALJ-08-0251-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter is before the Administrative Law Judge Division ("Division") pursuant to the Motion to Dismiss filed by the Department of Health and Human Services ("Department") on June 19, 2001. In the Motion to Dismiss, the Department asserts the Division does not have jurisdiction to hear this appeal because the appeal was not timely filed with the Division.

On April 24, 2001, the Department held a hearing on Appellant's appeal of the denial of Medicaid benefits under the Aged, Blind and Disabled category. Neither Appellant nor her attorney appeared at the hearing. In a decision dated April 26, 2001, the Department dismissed the case for Appellant's failure to appear, citing 42 C.F.R. § 431.223(b) (2000). The cover letter enclosing the Department's decision specifically provided:

Any party has the right to petition for further review of this Decision, as provided in the Administrative Procedures Act . . . . To request a review, a Notice of Appeal must be filed with the Administrative Law Judge Division, 1205 Pendleton Street, Brown Building - 2nd floor, Columbia, South Carolina 29201 within thirty (30) days of receipt of the Decision/Order from which the appeal is taken. The Notice of Appeal must be submitted in accordance with the Rules of Procedure for the S.C. Administrative Law Judge Division, including Rule 33 which establishes specific requirements for the contents of a Notice of Appeal.

Appellant received the Department's decision and cover letter on May 1, 2001.

On May 30, 2001, Appellant submitted a "Notice of Appeal and Motion for Reconsideration or in the Alternative to Reopen Petitioner's Appeal" to the Department. In a telephone call on May 31, 2001, and in a follow-up letter dated the same day, the Department informed Appellant that the Department could not reconsider or reopen the case and that the order dated April 26, 2001, was the final order to be appealed to the Division.

Appellant filed a Notice of Appeal with the Division on June 14, 2001, wherein Appellant appealed the Department's "denial of Petitioner's Motion for Reconsideration of its Order dated April 26, 2001, or in the Alternative to Reopen Petitioner's Appeal." The Department filed a Motion to Dismiss on June 19, 2001, asserting that because Appellant did not file a Notice of Appeal with the Division within thirty days of receiving the Department's decision, the Division does not have jurisdiction to hear this appeal. In Appellant's response to the Department's motion, Appellant asserted:

Since rehearing had never been held and the dismissal was predicated upon 42 CFR Ch. IV, § 431.223(b) (2000 ed.), the petitioner's failure to appeal [sic] at a scheduled hearing without good cause, counsel filed a Notice of Appeal and Motion for Reconsideration or in the Alternative To Reopen Petitioner's Appeal before the Hearing Officer and attempted to show good cause for the failure of an appearance by her or on her behalf.

After the motion hearing on July 10, 2001, Appellant and the Department filed supplemental materials in support of their respective positions. In a brief filed July 19, 2001, Appellant argued the Department's Hearing Officer had discretion to entertain a motion for reconsideration and to reopen a hearing, in which case a final order on Appellant's motion filed with the Department on May 30, 2001, would be the final decision to appeal to the Division. Appellant's motion, therefore, would toll the time for appealing to the Division. In a letter filed July 24, 2001, the Department argued the Hearing Officer had no authority to entertain a motion for reconsideration because the Department repealed S.C. Code Ann. Regs. 126-152(D), which allowed for reconsideration of a Hearing Officer's decision. According to the Department, the subsection was eliminated because "it was imposing an unnecessary layer of review that would impede the efficient adjudication of cases." The Department, therefore, argued the sole remedy available to a party aggrieved by the Hearing Officer's decision was to file an appeal with the Division pursuant to ALJD Rule 33. The Department further argued that, because the Hearing Officer had no authority to entertain Appellant's motion, the filing of the motion did not toll the time for filing an appeal with the Division.

S.C. Code Ann. § 44-6-90 (Supp. 2000) authorizes the Department to promulgate regulations pursuant to S.C. Code Ann. § 1-23-10 to -160 (1986 & Supp. 2000), in order to "carry out its duties." When regulations are issued pursuant to constitutional statutory authority, the regulations have the force and effect of law as if prescribed by statute. Mace v. Berry, 225 S.C. 160, 81 S.E.2d 276 (1954); see Davis v. Query, 209 S.C. 41, 39 S.E.2d 117 (1946) (In allowing executive or administrative officers to promulgate rules and regulations having the force and effect of law, the legislature does not violate the constitutional prohibition against delegating the legislative function). It logically follows that when a regulation or subsection of a regulation is repealed, the repeal has the force and effect of law as well. See S.C. Code Ann. § 1-23-10(4) (Supp. 2000) ("'Regulation' means each agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency" and includes "the amendment or repeal of a prior regulation").

The Department has issued regulations regarding appeals and hearings of Department actions and decisions. In 27 S.C. Code Ann. Regs. 126-152(A), (B), and (C) (1992 & Supp. 2000), the Department explains the procedure for appealing a Department decision to the Department's Hearing Officer. Prior to March 28, 1997, Reg. 126-152(D) also provided for the filing of a motion for reconsideration of the Hearing Officer's decision. When Subsection D was repealed, however, the ability to file a motion for reconsideration was eliminated. As a result, the filing of a motion for reconsideration would not toll the time for filing an appeal with the Division. Cf. Coward Hund Constr. Co. v. Ball Corp., 336 S.C. 1, 518 S.E.2d 56 (Ct. App. 1999) (when appellate and civil rules did not provide for a second motion for reconsideration to be filed, the filing of the second motion did not stay the time for filing a notice of appeal).

Because Subsection D was eliminated, Appellant should have filed a notice of appeal with the Division within thirty days of receiving the Department's decision. Appellant, therefore, should have filed the notice of appeal on or before May 31, 2001. The notice of appeal was not filed until June 14, 2001 and, therefore, was not timely filed with the Division.

Even though Appellant argues 42 C.F.R. § 431.223(b) (2000) implies Appellant should have been given an opportunity to show good cause why she did not appear at the hearing, this argument lacks merit under the circumstances of this case. Appealing directly to the Division in fact would have given Appellant the opportunity to show good cause for failure to appear. The repeal of Subsection D specifically eliminated the motion for reconsideration as the appropriate avenue. The appropriate avenue to show good cause, therefore, would have been to appeal directly to the Division. Furthermore, any confusion regarding the appropriate avenue of appeal should have been alleviated by the cover letter, which specifically instructed Appellant to file any appeal with the Division.

IT IS HEREBY ORDERED that the Department's Motion to Dismiss is granted and this case is dismissed.

AND IT IS SO ORDERED.





__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge



August 23, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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