Commonwealth of Kentucky Cabinet for Health and Family Services v. Rebecca Yeager as Next Friend of Emaree Yeager ( 2021 )


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  •                  RENDERED: JANUARY 29, 2021; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2019-CA-1500-MR
    COMMONWEALTH OF KENTUCKY,
    CABINET FOR HEALTH AND FAMILY SERVICES                               APPELLANT
    APPEAL FROM FRANKLIN CIRCUIT COURT
    v.              HONORABLE THOMAS D. WINGATE, JUDGE
    ACTION NO. 18-CI-01173
    REBECCA YEAGER,
    AS NEXT OF FRIEND OF EMAREE YEAGER                                      APPELLEE
    OPINION
    REVERSING AND REMANDING
    ** ** ** ** **
    BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
    MCNEILL, JUDGE: The Commonwealth of Kentucky, Cabinet for Health and
    Family Services (“Cabinet”), appeals the Franklin Circuit Court’s September 9,
    2019 opinion and order reversing the final order of the Cabinet Secretary. The
    Cabinet’s sole argument on appeal is that the circuit court erred in denying its
    motion to dismiss due to appellee’s failure to timely appeal the final order. Having
    reviewed the parties’ arguments, the record, and the applicable law, we reverse the
    order of the Franklin Circuit Court and remand for proceedings consistent with this
    opinion.
    Emaree Yeager (“Emaree”), a minor child, is a Kentucky Medicaid
    recipient who qualifies for home and community based (“HCB”) waiver services
    pursuant to 907 KAR1 7:010. This regulation was promulgated pursuant to KRS2
    205.5606 to allow enrolled persons to assist with the design of their Medicaid
    services, choose their service providers, and direct the delivery of services to meet
    their needs. KRS 205.5606(1).
    To this end, 907 KAR 7:010 provides a Medicaid recipient the option
    to receive their HCB waiver services through a traditional Medicaid provider or
    through what is known as the participant-directed services option (“PDS”). PDS
    allows for in-home services as an alternative to institutionalized care. If a recipient
    elects PDS, the recipient hires an individual to provide HCB waiver services and
    that individual is paid through the HCB waiver services program. Relevant to this
    1
    Kentucky Administrative Regulations.
    2
    Kentucky Revised Statutes.
    -2-
    case, 907 KAR 7:010 Section 6(8) establishes certain criteria that must be met
    before an immediate family member can be approved to provide PDS.
    On January 21, 2018, Rebecca Yeager (“Yeager”), Emaree’s mother,
    applied to serve as Emaree’s PDS provider. The Cabinet denied Yeager’s
    application, finding she did not meet all the criteria of 907 KAR 7:010 Section
    6(8). In response, Yeager requested an administrative hearing pursuant to 907
    KAR 1:563. Following the hearing, the hearing officer entered a recommended
    decision, reversing the Cabinet’s denial of Yeager’s PDS application.
    The Cabinet filed exceptions to the recommended decision and on
    October 30, 2018, the Cabinet Secretary entered a final order rejecting the hearing
    officer’s recommended decision and affirming the Cabinet’s denial of Yeager’s
    PDS provider request. The Cabinet Secretary found that Yeager did not satisfy
    907 KAR 7:010 Section 6(8)(d), which requires that “[t]he services being provided
    are not natural supports[.]” The regulation defines “natural supports” as “a non-
    paid person, persons, primary caregiver, or community resource who can provide
    or has historically provided assistance to the participant or due to the familial
    relationship would be expected to provide assistance.” 907 KAR 7:010 Section
    1(35). The Cabinet Secretary reasoned that since Yeager was Emaree’s primary
    caregiver and had “historically provided [the required] assistance” to her daughter,
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    she is a “natural support” and thus ineligible to serve as a PDS provider for
    Emaree.
    The final order was mailed to Yeager on October 30, 2018. Yeager
    sought judicial review of the final order in the Franklin Circuit Court. On
    November 30, 2018, Yeager, as next friend of Emaree, tendered a motion to
    proceed in forma pauperis along with the petition for review. The motion was
    granted, and the petition was filed on December 6, 2018.
    Subsequently, the Cabinet moved to dismiss the petition as untimely
    because it was not filed within the 30-day timeframe required by KRS 13B.140,
    arguing the circuit court therefore lacked subject matter jurisdiction. The circuit
    court denied the motion to dismiss, holding that because the petition was filed
    within 30 days of its receipt, Yeager had substantially complied with the statute.
    On September 9, 2019, the circuit court entered an opinion and order
    reversing the final order of the Cabinet Secretary, finding the final order was not
    supported by substantial evidence. The court also denied the Cabinet’s renewed
    motion to dismiss on the same grounds as before. This appeal followed.
    The Cabinet’s only argument on appeal is that the circuit court erred
    in denying its motion to dismiss. It contends strict compliance with KRS 13B.140
    is required to invoke the circuit court’s jurisdiction. We agree.
    In [Taylor v. Kentucky Unemployment Insurance
    Commission, 
    382 S.W.3d 826
    (Ky. 2012)], we reaffirmed
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    the “firmly rooted concept of law in this state that the
    courts have no jurisdiction over an appeal from an
    administrative agency action unless every statutory
    precondition is 
    satisfied.” 382 S.W.3d at 831
    . As a
    general rule, “[t]here is no appeal to the courts from an
    action of an administrative agency as a matter of right.
    When grace to appeal is granted by statute, a strict
    compliance with its terms is required.” Board of
    Adjustments of City of Richmond v. Flood, 
    581 S.W.2d 1
    ,
    2 (Ky. 1978) (citations omitted). Statutory preconditions
    for vesting courts with the authority to engage in judicial
    review cannot be satisfied by substantial compliance.
    See City of Devondale v. Stallings, 
    795 S.W.2d 954
    , 957
    (Ky. 1990) (“It is only [when defects are
    nonjurisdictional in nature] that a discussion of
    substantial compliance . . . is appropriate.”).
    Consequently, at least with respect to the jurisdictional
    requirements for invoking judicial review of an
    administrative agency ruling, we have no substantial
    compliance exception to a statute which grants the right
    to appeal. See Kentucky Unemployment Insurance
    Commission v. Carter, 
    689 S.W.2d 360
    , 361-362 (Ky.
    1985).
    Kentucky Unemployment Ins. Comm’n v. Wilson, 
    528 S.W.3d 336
    , 339 (Ky. 2017).
    KRS 13B.140(1) sets forth the procedural requirements for an
    aggrieved party seeking judicial review of an administrative agency’s final order:
    “[a] party shall institute an appeal by filing a petition in the Circuit Court of venue,
    as provided in the agency’s enabling statutes, within thirty (30) days after the final
    order of the agency is mailed or delivered by personal service.” (Emphasis added).
    Thus, the statute imposes a 30-day period of limitations for an aggrieved party to
    challenge a final order regarding a PDS provider request.
    -5-
    In this case, the final order was mailed to Yeager on October 30,
    2018. Thus, Yeager had until November 29, 2018 to file her petition in circuit
    court. However, Yeager filed her petition on November 30, 2018, one day outside
    the statute of limitations. Therefore, the circuit court lacked jurisdiction to
    consider her petition for judicial review. Although seemingly harsh, as noted
    above, “[s]tatutory preconditions for vesting courts with the authority to engage in
    judicial review cannot be satisfied by substantial compliance.” 
    Wilson, 528 S.W.3d at 339
    (citation omitted).
    In an effort to avoid dismissal of her action, Yeager argues that
    because KRS 13B.120(5) requires final orders be sent by certified mail and KRS
    13B.050(2) states that “[s]ervice by certified mail shall be complete upon the date
    on which the agency receives the return receipt or the returned notice[,]” the 30-
    day statute of limitations was tolled until service was complete, and her appeal is
    timely. However, the plain language of KRS 13B.140(1) requires a party to file
    her appeal “within thirty (30) days after the final order of the agency is mailed[,]”
    not when service is completed. (Emphasis added.)
    Likewise, Yeager’s argument that her filing was timely because CR3
    6.05 provides three extra days to file her petition also fails. In Cabinet for Human
    Resources v. Holbrook, 
    672 S.W.2d 672
    (Ky. App. 1984), we held that “[t]he civil
    3
    Kentucky Rules of Civil Procedure.
    -6-
    rules . . . do not apply to appeals of administrative decisions until after the appeal
    has been perfected and jurisdiction has attached.”
    Id. at 675
    (citation omitted).
    Holbrook concerned the appeal of an administrative agency’s decision pursuant to
    KRS 210.270(7). The appeal was filed five days outside of the 30-day statute of
    limitations. Appellant moved to dismiss for lack of jurisdiction, and appellee
    argued that under CR 6.02, the circuit court could enlarge the time for filing of the
    appeal based on excusable neglect. The circuit court denied the motion to dismiss.
    On appeal, we reversed the circuit court, holding:
    Since the civil rules do not come into effect in appeals
    from decisions of administrative agencies until the appeal
    is perfected, the excusable neglect concept of CR 6.02,
    which permits late filing of appeals if excusable neglect
    is alleged, is not a viable argument for appellees to utilize
    because the appeal was untimely filed. Thus, the appeal
    was never perfected according to KRS 210.270(1), and
    the civil rules never became effective. On this ground
    alone the trial court should have dismissed the appeal
    from the DHR panel.
    
    Holbrook, 672 S.W.2d at 675
    .
    Similarly, here, because Yeager failed to perfect her appeal and
    invoke the jurisdiction of the circuit court by complying with KRS 13B.140(1), the
    civil rules never became effective. Thus, CR 6.05 cannot serve to extend the filing
    time.
    Accordingly, we reverse the opinion and order of the Franklin Circuit
    Court and remand for proceedings consistent with this opinion.
    -7-
    MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
    CALDWELL, JUDGE, CONCURS AND JOINS CONCURRING
    OPINION BY JUDGE MAZE.
    MAZE, JUDGE, CONCURRING: I concur in the reasoning and the
    result of the majority opinion because I am convinced that it is compelled by the
    controlling language of the statute. As the majority notes, we are not at liberty to
    allow for substantial compliance with the jurisdictional prerequisites for judicial
    review from administrative agencies. Furthermore, KRS 13B.140(1) expressly
    requires the filing of the appeal “within thirty (30) days after the final order of the
    agency is mailed or delivered by personal service.” (Emphasis added). There is no
    question in this case that Yeager failed to file her appeal within thirty days from
    the mailing of the final order.
    But in my opinion, Yeager makes a compelling argument that this rule
    should be qualified by KRS 13B.120(5), which requires “a copy of the final order
    shall be transmitted to each party or to his attorney of record in the same manner as
    provided in KRS 13B.050.” KRS 13B.050(1) requires such service by “certified
    mail, return receipt requested” and adds that, “Service by certified mail shall be
    complete upon the date on which the agency receives the return receipt or the
    returned notice.” The focus of these sections is to ensure the interested party’s
    receipt of the agency’s final order. In my view, the better rule would be to deem
    the mailing complete upon the party’s signing of the return receipt card. But as an
    -8-
    intermediate appellate, I must admit that we do not have the authority to adopt such
    a rule. Since the majority’s reading is the prevailing interpretation of the statute, I
    must reluctantly concur with the reasoning and the result.
    BRIEFS FOR APPELLANT:                      BRIEF FOR APPELLEE:
    Shaun T. Orme                              Andrea K. Welker
    Frankfort, Kentucky                        Lexington, Kentucky
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Document Info

Docket Number: 2019 CA 001500

Filed Date: 1/28/2021

Precedential Status: Precedential

Modified Date: 2/5/2021