Anytime Childcare v. DHS ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anytime Childcare, :
Petitioner :
:
v. : No. 806 C.D. 2020
: Submitted: March 26, 2021
Department of Human Services, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: May 19, 2021
Anytime Childcare petitions for review of an adjudication of the Bureau
of Hearings and Appeals (Bureau) of the Department of Human Services
(Department). Adopting the recommendation of an administrative law judge (ALJ),
the Department dismissed Anytime Childcare’s appeal of the non-renewal of its
certificate to operate a “family child care home.”1 The Department held that the
appeal was untimely filed. For the following reasons, we affirm.
Anytime Childcare is a child care facility located in Pittsburgh,
Pennsylvania, owned by Baboucarr Jagne (Owner) and operated pursuant to a
provisional certificate of compliance.2 Certified Record at 13 (C.R.__). On
November 13, 2019, a Department representative conducted a renewal inspection
1
A “family child care home” is defined as “[a] home other than the child’s own home, operated
for profit or not-for-profit, in which child care is provided at any one time to four, five or six
children unrelated to the operator.” 55 Pa. Code §3290.4.
2
The Department’s regulations provide for the issuance of a provisional certificate of compliance
“if the facility or agency is in substantial, but not complete, compliance” with applicable
regulations. 55 Pa. Code §20.54(a).
and noted multiple regulatory violations such as unavailability of certificates of
compliance, lack of emergency plans, unsuitable persons in the facility, lack of
emergency telephone numbers, inadequate equipment, lack of agreements with
parents, and inadequate recordkeeping. Id. at 14. Anytime Childcare was notified
of the violations that same day. Thereafter, the Department sent Anytime Childcare
a written request to submit a plan to correct the cited violations by November 19,
2019. The Department made a second written request on December 2, 2019, when
Anytime Childcare did not meet the November 19, 2019, deadline. Anytime
Childcare did not submit a plan.
On January 13, 2020, the Department’s Office of Child Development
and Early Learning notified Owner that it would not renew Anytime Childcare’s
third provisional certificate of compliance because it had not submitted a plan of
correction. The notice stated that Anytime Childcare had been “repeatedly cited for
violating a number of particular regulations for family child care homes” based on
previous inspections.3 Id. at 14-15. The notice further explained:
The repeated regulatory noncompliance, as described above,
constitutes a failure to comply with the Human Services Code [4]
and [the] Department’s regulations and requirements, failure to
submit acceptable plans to correct noncompliance items, failure
to comply with the acceptable plan to correct noncompliance
items, and gross incompetence, negligence, and misconduct in
the operation of a child care program, each of which constitute
separate and independent bases to refuse to renew your third
3
The letter explained that in addition to the November 13, 2019, renewal inspection, Department
officials had conducted inspections and found regulatory violations on the following days: July
12, 2018, November 6, 2018, February 11, 2019, April 4, 2019, June 6, 2019, July 24, 2019, and
August 20, 2019. C.R. 13-14.
4
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§101-1503.
2
provisional certificate of compliance to operate a family child
care home.
C.R. 15. For those reasons, the Department refused to renew Anytime Childcare’s
third provisional certificate of compliance.
The notice informed Anytime Childcare that it had the right to appeal
the Department’s non-renewal of its certificate in accordance with the General Rules
of Administrative Practice and Procedure (GRAPP), 1 Pa. Code Part II. It further
informed Anytime Childcare that an appeal had to be received by the Department
within 30 days of the January 13, 2020, letter.
Anytime Childcare appealed the Department’s refusal by letter dated
February 11, 2020. It was received by the Department on February 13, 2020, one
day after the 30-day deadline. In its appeal, Anytime Childcare asserted that it had
“fixed all citations” and that its employees had been going “above and beyond to
create the best environment for [its] children and families.” Id. at 10. The
Department responded that the Bureau would schedule a hearing on Anytime
Childcare’s appeal.
On February 25, 2020, the Department issued a Rule to Show Cause
directing Anytime Childcare to show why the appeal should not be dismissed for
lack of jurisdiction given its failure to file a timely appeal. Citing the January 13,
2020, notice, and Section 31.11 of GRAPP,5 the Rule to Show Cause stated that
if [Anytime Childcare] wished to appeal the decision, the appeal
had to be received[] by the program office within thirty (30)
calendar days from the date of the January 13, 2020 notice.
[Anytime Childcare’s] appeal was received by [the Office] on
5
1 Pa. Code §31.11.
3
February 13, 2020, which was thirty-one (31) days from the date
of the notice. Therefore, it was untimely filed.
C.R. 212. The Rule further directed Anytime Childcare to respond to the Rule within
30 days and explain why its appeal should be heard notwithstanding Anytime
Childcare’s untimely appeal. Stated otherwise, this was Anytime Childcare’s
opportunity to show why a nunc pro tunc appeal should be allowed. Anytime
Childcare did not respond to the Rule to Show Cause.
On July 10, 2020, the ALJ recommended dismissal of Anytime
Childcare’s appeal due to lack of jurisdiction. The ALJ found that the February 25,
2020, Rule “was properly mailed to [Anytime Childcare’s] address of record and
was not returned as undeliverable by the United States Postal Service; therefore,
[Anytime Childcare] received the Rule.” Id. at 218. The ALJ construed Anytime
Childcare’s failure to respond to the Rule to Show Cause as an admission that the
Bureau lacked jurisdiction over Anytime Childcare’s appeal.
On July 10, 2020, the Department adopted the ALJ’s adjudication and
recommendation in its entirety. On July 16, 2020, Anytime Childcare timely filed a
request for reconsideration, asserting that the appeal was untimely because:
1) Staff and Schedule. [S]taffing more than 2 staff seems
impossible due to funds. [T]his makes it diff[i]cult for staff to
leave site to schedule for doctors[’] appoi[n]tment[.]
2) Obtaining documents – Also background[] checks and
doctors[’] test results took some [time] to return.
3) Mailing USPS. [W]hen we sent the appeal package we
e[x]pected for it to make it on time.
4
Id. at 220. Because the Department did not act on the request for reconsideration
within the applicable timeframe,6 it was deemed denied. Anytime Childcare then
filed a petition for review with this Court.
On appeal,7 Anytime Childcare devotes most of its brief to the merits
of the case, i.e., that it submitted an appropriate plan of correction after the
November 13, 2019, renewal inspection and has remedied the cited violations. The
only issue before this Court, however, is whether the Department erred in dismissing
Anytime Childcare’s appeal for lack of jurisdiction.
GRAPP establishes how filing deadlines with the Department are
satisfied. Section 31.11 states as follows:
Pleadings, submittals or other documents required or permitted
to be filed under this part, the regulations of the agency or any
other provision of law shall be received for filing at the office of
the agency within the time limits, if any, for the filing. The date
of receipt at the office of the agency and not the date of deposit
in the mails is determinative.
1 Pa. Code §31.11 (emphasis added). In short, it is the date of the receipt, not the
date of mailing, that determines whether a filing with the Department has been
timely filed.
Anytime Childcare appears to argue that it is entitled to a renewal of its
provisional certificate of compliance because it submitted a plan of corrective action
after the Department’s second request for such a plan and because it remedied the
6
See Section 35.241(d) of GRAPP, 1 Pa. Code §35.241(d) (stating that the application for
reconsideration will be deemed denied if the agency head does not act upon it within 30 days).
7
This Court’s scope and standard of review of an order of the Department is to determine whether
constitutional rights were violated, whether an error of law was committed, or whether findings of
fact were supported by substantial evidence. Integrated Behavioral Health Services v. Department
of Public Welfare, 871 A.2d 296, 299 n.6 (Pa. Cmwlth. 2005).
5
violations. It further appears that Anytime Childcare is now asserting that it never
received the February 25, 2020, Rule to Show Cause.8
These arguments miss the point. The January 13, 2020, notice informed
Anytime Childcare that it had the right to appeal the Department’s decision to refuse
to renew its provisional certificate of compliance. Citing GRAPP, the letter also
explained: “[t]o be timely, an appeal must be received at the above address within
thirty (30) days of the mailing date of this letter.” C.R. 15 (emphasis added). In its
brief, Anytime Childcare concedes that it did not mail its appeal to the Department
until February 12, 2020, the last day of the appeal period. Anytime Childcare Brief
at 8. Further, the record establishes that the appeal was not received until February
13, 2020. Under Section 31.11 of GRAPP, Anytime Childcare’s filing was not
timely received.
Accordingly, we are constrained to affirm the Department’s
adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
8
Anytime Childcare raises these arguments for the first time on appeal. Because Anytime
Childcare did not raise these arguments before the Department, they are waived. See Hudock v.
Department of Public Welfare, 808 A.2d 310, 313 n.4 (Pa. Cmwlth. 2002) (“When a party fails to
raise an issue … in an agency proceeding, the issue is waived and cannot be considered for the
first time in a judicial appeal.”). Further, the record does not contain any indication that Anytime
Childcare submitted a plan of corrective action to the Department or that it did not receive the
Rule.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anytime Childcare, :
Petitioner :
:
v. : No. 806 C.D. 2020
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 19th day of May, 2021, the adjudication of the
Department of Human Services, Bureau of Hearings and Appeals, dated July 10,
2020, is hereby AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita