A Samuel's Christian Home Care v. Department of Health ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A Samuel’s Christian Home Care, :
:
Petitioner :
:
v. : No. 1400 C.D. 2019
: Submitted: August 21, 2020
Department of Health, :
:
Respondent :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: July 19, 2021
A Samuel’s Christian Home Care (Licensee) petitions for review of the
Final Agency Determination of the Secretary of Health, of the Department of Health
(Secretary and Department, respectively), adopting the Proposed Report of a
Department hearing examiner (Hearing Examiner) that affirmed the Department’s
January 23, 2018 Amended Order (Amended Order). The Amended Order rescinded
Licensee’s regular license to operate a home health care agency,1 dated September
1
Section 806(a) of the Health Care Facilities Act (Act), Act of July 19, 1979, P.L. 130, as
amended, added by the Act of July 12, 1980, P.L. 655, 35 P.S. §448.806(a), states: “No person
shall maintain or operate or hold itself out to be a health care facility without first having obtained
a license therefor issued by the [D]epartment. No health care facility can be a provider of medical
assistance services unless it is licensed by the [D]epartment and certified as a medical assistance
provider.” In turn, Section 802.1 of the Act, added by the Act of July 12, 1980, P.L. 655, 35 P.S.
§448.802a, defines “home health care agency,” in relevant part, as “[a]n organization . . . staffed
and equipped to provide nursing and at least one therapeutic service to persons who are disabled,
aged, injured or sick in their place of residence or other independent living environment. The
agency may also provide other health-related services to protect and maintain persons in their place
of residence or other independent living environment.”
1, 2017, through August 31, 2018; revoked Licensee’s home health care agency
license effective February 23, 2018; directed the closure of Licensee’s home health
care facility and discharge of its patients to other home health care agencies; and
dismissed Licensee’s exceptions to the Proposed Report. We affirm.
Licensee is a home health care agency owned by Ebenezer Singha
(Singha) located at 309 Huron Street, Industry, Beaver County, and was operating
under Department License No. 02140501. From August 9, 2017, to August 16,
2017, the Department conducted and completed a Survey2 of the facility and found
13 violations of the Department’s regulations with respect to Licensee’s operations.
Based on the Survey, the Department issued a Form CMS-2567 extensively setting
forth the specific facts underlying the purported violations. See Certified Record
(C.R.) at 81-139.3
2
Section 806.4(a) of the Act, added by the Act of July 7, 2006, P.L. 334, 35 P.S.
§448.802d(a), provides: “An application for licensure or the issuance and renewal of any license
by the [D]epartment shall constitute consent by the applicant or licensee for a representative of the
[D]epartment to have access to enter the premises for inspection purposes during regular business
hours.” See also Section 601.4 of the Department’s regulations, 28 Pa. Code §601.4 (“The home
health care agency shall be subject to inspection at any time by authorized representatives of the
Department. Inspections may be scheduled in advance or be unannounced.”).
3
The Secretary summarized the violations as follows:
The Department’s January 23, 2018 Amended Order set
forth deficiencies on [Licensee’s] part, constituting violations of the
Department’s regulations at 28 Pa. Code [§§]601.21 (related to
organization, services and administration); 601.21(c) (related to
governing body); 601.21(d) (related to administrator); 601.21(e)
(related to supervising physician or registered nurse); 601.31(a)
(related to patient acceptance, plan of treatment and medical
supervision); 601.31(b) (related to plan of treatment); 601.31(c)
(related to periodic review of plan of treatment); 601.31(d) (related
to conformance with physician orders); 601.32 (related to skilled
nursing service); 601.32(a) (related to supervision); 601.32(b)
(Footnote continued on next page…)
2
Ultimately, on January 23, 2018, the Department mailed an Amended
Order directing the rescission of Licensee’s regular license dated September 1, 2017,
to August 31, 2018, and revoking Licensee’s home health care agency license
effective February 23, 2018, pursuant to Sections 811(1),4 812,5 814(a),6 and 817(d)
(related to duties of the registered nurse); 601.33(a) (related to
qualified therapists); and 601.36(a) (related to maintenance and
content of record). Id. Those deficiencies were based on specific
factual allegations set forth in the Summary Statement of
Deficiencies. Id.
C.R. at 283-84.
4
Added by the Act of July 12, 1980, P.L. 655, 35 P.S. §448.811(1). Section 811(1) states,
in relevant part, that “[t]he [D]epartment may refuse to renew a license or may suspend or revoke
or limit a license for all or any portion of a health care facility, . . . for . . . [a] serious violation of
provisions of this [A]ct or of the regulations for licensure issued pursuant to this [A]ct. . . . For the
purpose of this paragraph, a serious violation is one which poses a significant threat to the health
or safety of patients or residents.”
5
Added by the Act of July 12, 1980, P.L. 655, 35 P.S. §448.812. Section 812 states, in
pertinent part:
When there are numerous deficiencies or a serious specific
deficiency in compliance with applicable statutes . . . or regulations
and when the [D]epartment finds the applicant is taking appropriate
steps to correct the deficiencies in accordance with a timetable
submitted by the applicant and agreed upon by the [D]epartment and
there is no cyclical pattern of deficiencies over a period of two or
more years, then the [D]epartment may issue a provisional license
for a specified period of not more than six months which may be
renewed three times at the discretion of the [D]epartment. Upon
substantial compliance, including payment of any fines levied
pursuant to [S]ection 817(d), a regular license shall be issued.
6
Added by the Act of July 12, 1980, P.L. 655, 35 P.S. §448.814(a). Section 814(a)
provides:
(Footnote continued on next page…)
3
of the Act,7 based on the stated deficiencies in the Form CMS-2567 appended
thereto. C.R. at 79-141.8 The Amended Order stated that although Licensee “had
(a) Notice of violations.--Whenever the [D]epartment shall upon
inspection, investigation or complaint find a violation of this chapter
or regulations adopted by the [D]epartment pursuant to this chapter
or pursuant to Federal law, it shall give written notice thereof
specifying the violation or violations found to the health care
provider. Such notice shall require the health care provider to take
action or to submit a plan of correction which shall bring the health
care facility into compliance with applicable law or regulation
within a specified time. The plan of correction must be submitted
within 30 days of receipt of the written notice or sooner if directed
to do so by the [D]epartment. The [D]epartment may ban
admissions or revoke a license before a plan of correction is
submitted whenever deficiencies pose a significant threat to the
health or safety of patients or residents.
7
Added by the Act of July 12, 1980, P.L. 655, 35 P.S. §448.817(d). Section 817(d) states:
“Whenever the [D]epartment determines that deficiencies pose an immediate and serious threat to
the health or safety of the patients or residents of the health care facility, the [D]epartment may
direct the closure of the facility and the transfer of patients or residents to other licensed health
care facilities.”
8
Section 35.14 of the General Rules of Administrative Practice and Procedure (GRAPP)
states:
Whenever an agency desires to institute a proceeding against a
person under statutory or other authority, the agency may commence
the action by an order to show cause setting forth the grounds for
the action. The order will contain a statement of the particulars and
matters concerning which the agency is inquiring, which shall be
deemed to be tentative and for the purpose of framing issues for
consideration and decision by the agency in the proceeding, and the
order will require that the respondent named respond orally, or in
writing (as provided in [Section] 35.37 (relating to answers to orders
to show cause)) or both.
1 Pa. Code §35.14; see also Section 551.111 of the Department’s regulations, 28 Pa. Code
§551.111 (“Hearings relating to licensure, including the issuance of a provisional license, or the
suspension of admissions, will be conducted by the Health Policy Board, under 37 Pa. Code
(Footnote continued on next page…)
4
submitted a Plan of Correction, which was acceptable to the Department,” “a follow-
up survey on September 29, 2017, was unable to verify compliance as the agency
has had no clients.” Id. at 79.
The Amended Order also stated, in relevant part:
You may appeal the issuance of this [Amended]
Order by requesting an Administrative Hearing before the
Health Policy Board [(Board)]. If you wish to appeal the
Department’s action you must file the attached “Notice of
Appeal” within 30 days of the Date of Mailing of this
decision with the [Board . . . .]
Additionally, if an appeal is filed, an Answer to the
Order must be filed with the [Board] specifically admitting
or denying the allegations or charges in the [Amended]
Order. See, 37 Pa. Code §197.84.[9] Failure to file said
Answer shall be deemed an admission by you that all
allegations or charges contained in the [Amended] Order
are true. The rules of practice and procedure for the
[Board] can be found at 37 Pa. Code Chapter 197.
***
Chapter 197 (relating to practice and procedure).”); Section 197.2(a) of the Board’s regulations,
37 Pa. Code §197.2(a) (“Part II of 1 Pa. Code (relating to [GRAPP]) applies to practice and
procedure before the [Board] insofar as it is not inconsistent with this chapter.”).
9
Section 197.84(b) of the Board’s regulations provides:
(b) Where the decision of the Department is in the form of a rule or
order to show cause, the appellant shall, at the time of filing the
notice of appeal, file an answer to the rule or order, which answer
shall be drawn so as specifically to admit or deny the allegations or
charges which may be made in the rule or order. Failure to file the
answer shall be deemed an admission by the appellant that the
factual allegations or charges contained in the rule or order are true.
37 Pa. Code §197.84(b).
5
If you do not request a hearing within 30 days of the
Date of Mailing, this [Amended] Order shall become final
pursuant to 1 Pa. Code §35.37[10] and 35 P.S. §448.815.[11]
C.R. at 79-80 (emphasis in original).
On February 22, 2018, Singha filed a pro se Notice of Appeal and a
letter appealing the Amended Order on Licensee’s behalf. C.R. at 1-6. In the Notice
of Appeal, Licensee’s specific objection to the Amended Order stated that “[t]he
decision is based on an erroneous standard which was unreasonable and arbitrar[il]y
set by the [Department] and not found anywhere in PA regulations,” and the
revocation “is double jeopardy as this agency’s license was sanctioned in
Sept[ember] 2017 and is being sanctioned again in Jan[uary] 2018.” Id. at 1. In the
attached letter, Licensee outlined the circumstances surrounding the Survey, alleging
that “the [l]icense history does not support the [Department] action,” and the
deficiencies were only found in retaliation for its refusal to close the facility because
10
Section 35.37 of the GRAPP states, in pertinent part:
A person upon whom an order to show cause has been served . . .
shall, if directed so to do, respond to the same by filing within the
time specified in the order an answer in writing. The answer shall
be drawn so as specifically to admit or deny the allegations or
charges which may be made in the order, set forth the facts upon
which respondent relies and state concisely the matters of law relied
upon. Mere general denials of the allegations of an order to show
cause which general denials are unsupported by specific facts upon
which respondent relies, will not be considered as complying with
this section and may be deemed a basis for entry of a final order
without hearing, unless otherwise required by statute, on the ground
that the response has raised no issues requiring a hearing or further
proceedings.
11
Section 815(a) of the Act, added by the Act of July 12, 1980, P.L. 655, 35 P.S.
§448.815(a), provides: “Orders of the [D]epartment from which no appeal is taken to the [B]oard,
and orders of the [B]oard from which no timely appeal is taken to the Commonwealth Court, are
final orders and may be enforced in court.”
6
it had no patients. Id. at 2. Licensee asserted that any purported deficiencies were
corrected as evidenced by the Department’s initial approval of the license renewal
in September 2017. Id. at 2-3.
In the letter, Licensee also claimed that the subsequent discipline in the
Amended Order constitutes double jeopardy, as evidenced by the amendment of the
initial Order that was issued to delete federal deficiencies while adding the foregoing
state deficiencies under the Department’s regulations. C.R. at 3. Further, Licensee
contended that the discipline imposed by the Amended Order cannot be based solely
on the August 2017 Survey because Singha emailed the Department to obtain a
Statement of Deficiencies for both the August 2017 and September 2017 Surveys,
but the Department did not provide any deficiencies from the September 2017
Survey. Id. Licensee submitted that the lack of a Statement from the September
2017 Survey “is evidence [that] is beneficial to [Licensee’s] case” because the
Department is “withholding this evidence,” and that Statements from both Surveys
should be sent to Licensee as well as the Board. Id.
On May 1, 2018, the Department filed a Motion to Deem Facts
Admitted Against A Samuel’s Christian Home Care for Failure to Comply with 1
Pa. Code §35.37 (Motion), in which the Department asked that all of the facts
underlying the 13 deficiencies in the Form CMS-2567 be deemed admitted based on
Licensee’s failure to deny these allegations in his Notice of Appeal or in the letter
attached thereto. C.R. at 181-82. The Department asserted that the responses in
Licensee’s “Answer do not deny the allegations, either generally or specifically, but
only reference erroneous and/or irrelevant details of the [S]urvey that resulted in the
[Amended] Order,” and that “[a]t no time does [Licensee] deny, or even list, any of
the state home health deficiencies in its Answer.” Id. at 182. The Department
7
alleged that Licensee’s failure to comply with the requirements of Section 35.37 of
the GRAPP and Section 197.84 of the Board’s regulations by “fail[ing] to
specifically deny the allegations it its Answer requires those facts to be deemed
admitted,” and “[g]iven [Licensee’s] admission of the facts alleged in the [Amended]
Order, a default judgment should be entered.” Id. Moreover, the Department
claimed, “[i]n admitting the facts alleged in the [Amended] Order, [Licensee] has
waived the basis for its appeal,” and “[d]ue process does not require a hearing in
every case” because “where no factual issues are in dispute, no evidentiary hearing
is required.” Id. As a result, based on the foregoing, the Department asked that
default judgment be entered in its favor and against Licensee because Licensee “has
waived the grounds for its appeal” of the Amended Order. Id. at 183. Although
Licensee filed a Motion to Dismiss the Amended Order on May 18, 2018, see C.R.
at 191-206, it did not file an answer to the Department’s Motion.
On May 21, 2018, the Hearing Examiner issued an order that stated, in
relevant part:
[U]pon consideration of the [Motion] filed by the
[Department] on May 1, 2018, and noting that [Licensee]
has not filed a response to the [Motion] within the 10-day
period prescribed for response to a motion by the
[GRAPP] at 1 Pa. Code §35.179,[12] the [Motion] is
GRANTED.
Consistent with the Department’s request in the
[Motion] and the grant of the [Motion], the facts set forth
in the Department’s [Amended Order] are deemed
admitted, a default judgment is entered against [Licensee],
and the grounds on which [Licensee] bases any appeal of
12
Section 35.179 of the GRAPP states: “Any participant shall have 10 days within which
to answer or object to any motion unless the period of time is otherwise fixed by the agency head
or the presiding officer.”
8
the Department’s [Amended Order] are deemed to have
been waived.
The hearing in this matter . . . is CANCELLED.
The record in this matter is CLOSED.
A proposed report shall be issued in due course.
C.R. at 208.
On June 4, 2018, the Hearing Examiner filed a Proposed Report in
which she found as fact that “[t]he facts found by the Department during the August
2017 [S]urvey, as detailed in the Summary Statement of Deficiencies column of the
[Form CMS-2567] attached to the Amended Order, are incorporated by reference as
part of these Findings of Fact as if fully set forth at length.” C.R. at 220. The
Hearing Examiner also found:
[Licensee] has been served with the Amended
Order, the [Motion], and all subsequent notices,
documents and pleadings filed in this matter, and has had
an opportunity to respond to all of said pleadings, but at
no time did [Licensee] explain its failure to file a
responsive answer to the allegations in the Amended
Order or its failure to respond to the [Motion], and at no
time has [Licensee] filed an answer to the Amended Order
which admits or denies the allegations in the Amended
Order.
Id.Based on the foregoing findings, the Hearing Examiner concluded:
Because [Licensee] failed to [file an] answer to the
Department’s Amended Order which specifically
admitted or denied the factual allegations underlying the
violations set forth in the Department’s Amended Order,
[Licensee] is in default and is deemed to have admitted the
factual allegations contained in the Department’s
Amended Order.
C.R. at 221 (citing 1 Pa. Code §35.37 and 37 Pa. Code §197.84(b)).
9
Accepting the undisputed specific factual allegations in the Amended
Order and the attached Form CMS-2567 as true, the Board also concluded that
Licensee failed to comply with the following Department regulations: (1) 28
Pa. Code §601.21 (relating to organization, services, and administration); (2) 28
Pa. Code §601.21(c) (relating to a governing body); (3) 28 Pa. Code §601.21(d)
(relating to an administrator); (4) 28 Pa. Code §601.21(e) (relating to a supervising
physician or a registered nurse); (5) 28 Pa. Code §601.31(a) (relating to patient
acceptance, a plan of treatment, and medical supervision); (6) 28 Pa. Code
§601.31(b) (relating to a plan of treatment); (7) 28 Pa. Code §601.31(c) (relating to
the periodic review of a plan of treatment); (8) 28 Pa. Code §601.31(d) (relating to
the conformance with physician orders); (9) 28 Pa. Code §601.32 (relating to skilled
nursing service); (10) 28 Pa. Code §601.32(a) (relating to supervision); (11) 28
Pa. Code §601.32(b) (relating to the duties of a registered nurse); (12) 28 Pa. Code
§601.33(a) (relating to qualified therapists); and (13) 28 Pa. Code §601.36(a)
(relating to the maintenance and content of records). C.R. at 221-22, 225-26; see
also id. (“[T]he Department initially determined that [Licensee] had committed
serious specific and repeated deficiencies by failing to comply with the
Department’s regulations . . . . Based on the undisputed facts constituting the
deficiencies set forth in the Amended Order, [Licensee] has engaged in the
regulatory violations as charged.”).
The Hearing Examiner further concluded:
Under the [Act] at [S]ections 811, 812, 814 and 817,
35 P.S. §§448.811, 448.812, 448.814, and [448.]817, the
Department is authorized to impose disciplinary sanctions,
including suspension, revocation or limiting of a license
and/or a civil penalty, for violations of the [Act] or the
regulations for licensure issued pursuant to the [Act]. Via
the issuance of its Amended Order in this matter, the
10
Department imposed such sanctions, in the form of
rescission of [Licensee’s] regular license dated September
1, 2017, through August 31, 2018, and revocation of
[Licensee’s] home health [care] agency [license].
[Licensee] has not provided any factual basis for disputing
the accuracy of the determinations in that [Amended]
Order. Accordingly, the Department’s findings and
sanctions, as set forth in its Amended Order, shall be
affirmed by the issuance of the following proposed
order[.]
C.R. at 302-03. As a result, the Hearing Examiner issued a Proposed Order affirming
the Department’s Amended Order. Id. at 304.
On June 28, 2018, Licensee filed a “Motion to vacate hearing officer’s
‘DEFAULT JUDGMENT’ AND Motion TO DISMISS THE [DEPARTMENT’S]
ORDER TO REVOKE THE LICENSE OF A SAMUEL’S CHRISTIAN ORDER
EFFECTIVE FEBRUARY 23RD 2018” (Exceptions) with an accompanying
Memorandum (Brief on Exceptions). C.R. at 231-48. As summarized by the Board:
[Licensee’s] Brief on Exceptions contains numerous
vague, nebulous averments woven together throughout 16
single-spaced pages of small font text. Its arguments and
factual assertions are not organized in any cognizable
fashion, leaving the Board to tease out, if possible, a
coherent narrative to which it can adequately respond. In
addition to a due process argument, [Licensee] ostensibly
seeks relief from this Board based on “Estoppel by
[l]ache[s],” “Promissory estoppel,” “Equitable estoppel,”
and “Detrimental [r]eliance.” However, [Licensee] does
not set forth the elements for these defenses in its Brief,
nor does it further discuss how this relief is applicable.
Consequently, these arguments will not be addressed
further.
Id. at 281 n.1.
With respect to Licensee’s due process claim, the Board concluded:
While [Licensee’s] Brief on Exceptions avers that it
has somehow been denied due process of law by the
Department in this matter[,] even a cursory examination of
11
the record reveals the converse to be true. Specifically,
despite being given ample opportunity to respond to the
allegations contained in the Department’s January 23,
2018 Amended Order, [Licensee] failed to do so.
Consequently, the Hearing [Examiner] correctly granted
the Department’s subsequent May 1, 2018 Motion to
Deem Facts Admitted.
C.R. at 281 (citation and footnote omitted).
Accordingly, by August 5, 2019 Order, the Secretary “ORDERED that
the Hearing [Examiner’s] Proposed Report, including the Findings of Fact and
Conclusions of Law, is ADOPTED for the reasons stated in the Proposed Report,”
and that “[Licensee’s] Exceptions to the Hearing [Examiner’s] Proposed Report are
hereby DENIED for the reasons stated in the attached Final Agency Determination.”
C.R. at 285 (emphasis in original). Licensee then filed the instant petition for review
of the Secretary’s Final Agency Determination.
On appeal,13 Singha is again representing Licensee’s interests pro se,14
and raises a number of claims that were not included in the Exceptions that were
filed to the Hearing Examiner’s Proposed Order nor addressed by the Board or the
Secretary. As a result, they have been waived and will not be addressed for the first
time in this appeal. See Pa. R.A.P. 1551(a) (“Review of quasi-judicial orders shall
13
Our “review is limited to determining whether constitutional rights were violated,
whether an error of law was committed[,] or whether the necessary findings of fact are supported
by substantial evidence.” Sklar v. Department of Health, 798 A.2d 268, 273 n.7 (Pa. Cmwlth.
2002).
14
Singha has appeared pro se on Licensee’s behalf throughout the proceedings below as
well as on appeal to this Court. See, e.g., Wilkins v. Marsico, 903 A.2d 1281, 1284-85 (Pa. Super.
2006) (“Although this Court is willing to liberally construe materials filed by a pro se litigant, pro
se status confers no special benefit upon the appellant. To the contrary, any person choosing to
represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.”) (citations omitted).
12
be conducted by the court on the record made before the government unit. Only
questions raised before the government unit shall be heard or considered . . . .”);
Section 35.213 of the GRAPP, 1 Pa. Code §35.213 (“Objections to any part of a
proposed report which is not the subject of exceptions may not thereafter be raised
before the agency head in oral argument . . . and shall be deemed to have been
waived.”). 15
From the remaining issues that may be gleaned from Licensee’s
appellate brief, to the extent that Licensee argues that the Board and the Secretary
erred in failing to address the defenses that were raised in the Brief on Exceptions,
the Certified Record reveals that no error was committed in this regard because
Licensee failed to set forth any of the elements of any of the defenses that it wished
to assert. See, e.g., Section 35.212(a)(1)(iii) and (iv) of the GRAPP, 1 Pa. Code
§35.212(a)(1)(iii) and (iv) (“Briefs on exceptions shall contain . . . [t]he grounds
upon which the exceptions rest [and t]he argument in support with appropriate
references to the record and legal authorities.”) (emphasis added); see also
Pa. R.A.P. 2119(a); Spotz; Browne.
To the extent that Licensee also argues that the Board and the Secretary
erred in rejecting its due process claims, the Certified Record again belies Licensee’s
assertion. “There are two essential elements of due process in administrative
proceedings: notice and opportunity to be heard.” Kiehl v. Unemployment
Compensation Board of Review, 747 A.2d 954, 957 (Pa. Cmwlth. 1999) (citation
15
See also Pa. R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part . . . the particular point treated
therein, followed by such discussion and citation of authorities as are deemed pertinent.”);
Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998), cert. denied, 526 U.S. 1070 (1999)
(holding that the failure to develop issue in appellate brief results in waiver); Browne v.
Department of Transportation, 843 A.2d 429, 435 (Pa. Cmwlth. 2004) (“At the appellate level, a
party’s failure to include analysis and relevant authority results in waiver.”).
13
omitted). Regarding the first element of due process, notice must reasonably inform
interested parties of the pending action as well as the information necessary to allow
either party to present objections. Wills v. State Board of Vehicle Manufacturers,
Dealers and Salespersons, 588 A.2d 572, 573 (Pa. Cmwlth. 1991). Regarding the
second element of due process, a hearing is not necessarily required where, for
example, there are no factual issues in dispute. Gruff v. Department of State, 913
A.2d 1008, 1014 (Pa. Cmwlth. 2006).
As outlined above, the Amended Order advised Licensee “if an appeal
is filed, an Answer to the Order must be filed with the [Board] specifically admitting
or denying the allegations or charges in the [Amended] Order,” and that the “[f]ailure
to file said Answer shall be deemed an admission by you that all allegations or
charges contained in the [Amended] Order are true.” C.R. at 79-80 (emphasis in
original). Additionally, the Amended Order specifically invoked the application of
Section 35.37 of the GRAPP and Section 197.84 of the Board’s regulations, relating
to a duty to specifically deny the factual allegations raised in the Amended Order.
See id. Moreover, after the Department filed its Motion for the entry of a default
judgment based on Licensee’s failure to specifically deny the factual allegations
underlying the discipline sought in the Amended Order, Licensee failed to file a
responsive answer within 10 days as required by Section 35.179 of the GRAPP. See
id. at 208. In sum, the Certified Record of this case demonstrates that Licensee was
given ample notice and an opportunity to be heard regarding the purported violations
of the Department’s regulations, and how to respond thereto, but failed to properly
avail itself of the process that was due and provided to Licensee.
14
In a similar circumstance in which a default judgment was entered
based on a teacher’s failure to specifically deny the facts averred in a rule to show
cause why disciplinary sanctions should not be imposed, this Court explained:
Here, despite the clear directive in the Notice of
Charges, [the teacher] did not specifically admit or deny
any of the factual assertions, nor did he provide any
reference to facts and matters of law relied upon; rather,
he merely stated that he contested the legal conclusion that
the crimes he was convicted of were crimes of moral
turpitude. Thus, [the teacher] failed to file a responsive
answer to the Notice of Charges, and the [Professional
Standards and Practices] Commission could properly
deem admitted the relevant facts stated in the Notice of
Charges and proceed to consideration of discipline without
scheduling an evidentiary hearing on the matter.
Kinniry v. Professional Standards and Practices Commission, 678 A.2d 1230, 1233-
34 (Pa. Cmwlth. 1996); see also Gruff, 913 A.2d at 1014 (“In the present
controversy, there were no factual issues in dispute. Therefore, an evidentiary
hearing was not required. As no hearing was required, Gruff was not denied due
process and the Secretary did not err.”); Zimmerman v. Foster, 618 A.2d 1105, 1107
(Pa. Cmwlth. 1992) (“[A]s the Order to Show Cause itself clearly warned, ‘[a]
respondent failing to file [an] answer within the time allowed shall be deemed in
default, and relevant facts stated in the order to show cause may be deemed
admitted.’ 1 Pa. Code §35.37.”). As a result, contrary to Licensee’s assertion, the
Department, the Board, and the Secretary did not violate Licensee’s due process
rights in disposing of the instant matter; see also Pa. R.A.P. 2119(a); Spotz; Browne.
Finally, to the extent that Licensee argues that the Board and the
Secretary erred in affirming the Hearing Examiner’s grant of the Department’s
Motion, the Certified Record again reveals no error in this regard. As extensively
outlined above, Licensee failed to specifically deny the factual averments in the
15
Amended Order underlying the instant disciplinary sanctions, and failed to file a
responsive answer to the Department’s Motion seeking the entry of a default
judgment within 10 days as required by Section 35.179 of the GRAPP. See C.R. at
208. See also P.E. v. Department of Public Welfare, 692 A.2d 1155, 1157 (Pa.
Cmwlth. 1997) (“The record establishes that [the named perpetrator] failed to
respond to DPW’s motion [to dismiss]. Because the motion was unopposed, [the
Office of Hearings and Appeals’] adoption of the hearing officer’s recommendation
to dismiss this matter was proper, and no further hearing is required.”); Pa. R.A.P.
2119(a); Spotz; Browne.
Accordingly, the Secretary’s Final Agency Determination is affirmed.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
A Samuel’s Christian Home Care, :
:
Petitioner :
:
v. : No. 1400 C.D. 2019
:
Department of Health, :
:
Respondent :
PER CURIAM
ORDER
AND NOW, this 19th day of July, 2021, the Final Agency
Determination of the Secretary of Health, of the Department of Health, dated August
5, 2019, is AFFIRMED.