CHOICES INSTITUTE v. OKLAHOMA HEALTH CARE AUTHORITY

CHOICES INSTITUTE v. OKLAHOMA HEALTH CARE AUTHORITY
2010 OK CIV APP 117
Case Number: 107533
Decided: 09/24/2010
Mandate Issued: 10/22/2010
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

CHOICES INSTITUTE, Plaintiff/Appellant,
v.
OKLAHOMA HEALTH CARE AUTHORITY AND MIKE FOGARTY, IN HIS CAPACITY OF CHIEF EXECUTIVE OFFICER OF THE OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, OKLAHOMA

HONORABLE RONALD G. FRANKLIN, JUDGE

REVERSED AND REMANDED

Tom Q. Ferguson, James R. Bullard, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Christopher J. Bergin, Heather M. Poole, OKLAHOMA HEALTH CARE AUTHORITY, Oklahoma City, Oklahoma, for Defendant/Appellee.

BAY MITCHELL, JUDGE:

¶1 This is an appeal by Choices Institute (Institute) from an order of the district court dismissing Institute's appeal from a decision of the Administrator of the Oklahoma Health Care Authority (OHCA).1 OHCA sought dismissal on the basis of Institute's failure to have summons issued and failure to file proof of service within ten (10) days which, OHCA claims, violates §318(C) of the Administrative Procedures Act, 75 O.S. 2001 §250 et seq. After oral argument, the trial court announced it "had no jurisdiction to hear the appeal" due to these alleged deficiencies and granted OHCA's Motion to Dismiss. Institute's motion to reconsider was denied. Upon review of the matter, we reverse and remand.

¶2 The granting of a 12 O.S. §2012(B) motion to dismiss is reviewed de novo. Indiana Nat'l Bank v. Dep't of Human Services, 1994 OK 98, ¶2, 880 P.2d 371, 375. The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts. Darrow v. Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204, 1208. To the extent these are jurisdictional issues, the standard of review is no different. MLC Mortgage Corp., v. Sun America Mortgage Co., 2009 OK 37, ¶6, 212 P.3d 1199, 1202 (jurisdictional issues present questions of law, reviewable de novo).

¶3 This case arises from an administrative proceeding brought by Institute2 before OHCA to protest OHCA's audit findings and OHCA's decision directing Institute to reimburse OHCA for medicaid overpayments. After several administrative appeals within the agency, OHCA issued its final agency order on April 30, 2009 directing Institute to reimburse OHCA the amount of $53,666. Institute timely filed a Petition initiating its appeal to the district court on May 29, 2009.3 Institute served the Petition by certified mail on OHCA's General Counsel on June 3, 2009 and OHCA's CEO on June 8th. An Affidavit of Service with attached certified mail return receipts was filed on June 10, 2009. Institute did not have summons issued or served with the Petition.4

¶4 OHCA filed its Motion to Dismiss on June 15, 2009. It contends dismissal was required due to Institute's failure to comply with statutory jurisdictional prerequisites of

B. (2) ... proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title.

C. Copies of the petition shall be served upon the agency and all other parties of record, and proof of such service shall be filed in the court within ten (10) days after the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.

Id

¶5 OHCA strenuously argues, and cites several authorities in support, that the procedural requirements for an appeal under the Administrative Procedures Act are mandatory and must be strictly complied with for the district court to have jurisdiction for its review. See, Conoco, Inc. v. State Dep't of Health,

¶6 It is clear that timely service of the petition is mandatory. §318(C)("Copies of the petition shall be served upon the agency and all other parties of record..."); See also Oklahoma Found. for Medical Quality, ¶17, 180 P.3d at 2, 5; Transwestern Publishing, L.L.C. v. Langdon,

¶7 While §318 the Administrative Procedures Act expressly requires timely filing and service of the petition to perfect an administrative appeal, it is silent as to any summons requirement.

¶8 OHCA's second ground for dismissal was that Institute failed to file proof of service within ten days as required by §318(C). As noted above, the Petition was filed on Friday, May 29, 2009 and Institute's Affidavit of Service was filed on Wednesday, June 10, 2009. The ten days following May 29, 2009 included two weekends (four weekend days). OHCA construes this ten-day deadline calculation to include the weekend days. Thus, if weekend days are to be counted, the deadline fell on Monday, June 8, 2009. If weekend days are not to be counted, the deadline was Friday, June 12th.

¶9 Including weekend days in the ten-day deadline calculation deprives appellants in administrative appeals the benefit of the common-sense rule applicable to civil proceedings generally, codified at

Except for the times provided in Sections 765, 990.3, 1148.4, 1148.5, 1148.5A, and 1756 of this title, when the period of time prescribed or allowed is less than eleven (11) days, intermediate legal holidays and any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, shall be excluded from the computation.

¶10 Although Appellants in administrative appeals are held to strictly comply with the statutory procedural requirements, there is no answer in the Administrative Procedures Act for whether the intermediate weekends or holidays should be counted in computing the ten-day deadline set forth in §318(C). Determining how this ten-day deadline is to be computed requires construction. Accordingly, it is appropriate to look for guidance where this issue has been addressed outside the Administrative Procedures Act. Title

¶11 This Court concludes that Institute complied with §318(C) in its timely filing and service of its Petition and the timely filing of its proof of service.

¶12 REVERSED AND REMANDED.

JOPLIN, P.J., and BELL, V.C.J., concur.

FOOTNOTES

1 An appeal from a decision of the Administrator of the Oklahoma Health Care Authority to the district court is authorized by 63 O.S. 2001 §5052.

2 Institute is a behavioral health services provider under contract with OHCA to provide services to SoonerCare members. OHCA administers the state Medicaid program.

3 Title 63 O.S. 2001 §5052 provides in pertinent part:
C. ... The decision of the Administrator may be appealed to the district court ... within thirty (30) days of the date of the decision of the Administrator as provided by the provisions of subsection D of this section.
D. Any applicant or recipient under this title who is aggrieved by a decision of the Administrator rendered pursuant to this section may petition the district court ... pursuant to the provisions of Sections 318 through 323 of Title 75 of the Oklahoma Statutes. A copy of the petition shall be served by mail upon the general counsel of the Authority.

Title 75 O.S. 2001 §318(B)(2) provides in pertinent part:
(P)roceedings for review shall be instituted by filing a petition, in the district court ... within thirty (30) days after the appellant is notified of the final agency order... .

Title 12 O.S. 2001 §951(b) also provides that appeals to the district court from "any tribunal, board or officer exercising judicial junctions" shall be commenced by filing a petition within thirty days of the date the order appealed was mailed to the appellant.