Appeal by respondent Jessica Currao from a finding by the Department of Public Health that she misappropriated patient property from a nursing home resident. Following respondent's failure to appear for a scheduled status conference or respond to an order to show cause why the appeal should not be dismissed, the appeal is dismissed for lack of prosecution and the appealed finding is made final.
In a written notice of finding dated May 21, 2008, petitioner Department of Public Health (DPH) charged respondent Jessica Currao, a nurse aide, with misappropriating property from a resident at the Hallmark Nursing and Rehabilitation Center in New Bedford, Massachusetts-several cigarettes allegedly taken between 3:00 p.m. and 11:00 p.m. on April 24, 2008 from a pack of the resident's cigarettes that were stored in a drawer at a nurses' station. See M.G.L. c. 111, § 72G-L and 105 CMR 155.000 et seq. Ms. Currao filed a timely request for a hearing (within 30 days of the date of the written notice) on June 7, 2008. See 105 CMR 155.013(E).
I held a prehearing conference on August 22, 2008 and scheduled the hearing to begin on October 30, 2008. On October 24, 2008, I continued the hearing at the request of both parties-by DPH because one of its witnesses was unavailable due to injuries sustained in a recent automobile accident, and by Ms. Currao because her counsel had withdrawn from this matter two days earlier. I scheduled a status conference for October 30, 2008 but continued it on that date because it remained unclear when DPH's witness would be physically able to testify at a hearing and because Ms. Currao's new representative (Mr. DeNuccio) filed a notice of appearance on that date and requested a continuance. With the agreement of DPH counsel and Mr. DeNuccio, I continued the status conference to November 18, 2008 and mailed an order confirming this rescheduling to DPH counsel, Mr. DeNuccio and Ms. Currao on October 30, 2008.
DPH counsel appeared for the scheduled conference on November 18, 2008, but neither Ms. Currao nor her representative appeared. Accordingly, I issued an order to show cause, pursuant to 801 CMR 1.01(7)(g)2, directing Ms. Currao to file and serve by December 10, 2008 a response showing good cause why this appeal should not be dismissed and the appealed DPH finding against her made final, based upon her failure to prosecute. The order stated that failure to respond, or to show good cause as it required, would result in the dismissal of this appeal and the finalization of the appealed finding without further notice. Copies of the order were mailed to Ms. Currao and to her authorized representative.
The respondent has filed no response to the order to show cause, and the deadline for doing so has passed. Ms. Currao's request for a hearing is dismissed, therefore, for lack of prosecution, pursuant to 801 CMR 1.01(7)(g)2 , and the appealed DPH finding as set forth in the agency notice of action dated May 21, 2008 is made final. DPH may now proceed to take appropriate action against the respondent based upon the charge recited in the May 21, 2008 notice of action.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Mark L. Silverstein
Dated: July 28, 2009