By letter of October 8, 2008, Petitioner, Department of Public Health-Division Health Care Quality (DPH) issued to Respondent, Wilmaris Santana, a Notice of Right of Hearing in connection with an allegation of abuse made against her as a Certified Nurse Aide at Wingate & South Hadley Rehab in South Hadley, MA. She requested a hearing on this contemplated action. The case was referred to the Division of Administrative Law Appeals (DALA) for hearing. A pre-hearing conference was held December 11, 2008, and then a hearing was scheduled for May 7, 2009, at the offices of DALA, 98 North Washington Street, 4th Floor, Boston, MA. Petitioner appeared with its witnesses and ready to go forward, but neither Respondent nor any authorized representative for Respondent appeared. An Order To Show Cause was issued on May 7, 2009 to Respondent to explain by May 26, 2009 her absence from the hearing. (Exhibit "A") This was issued pursuant to the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.02 (10) (d). To date, no response has been made to the Order. No return of the Order to Show Cause as undeliverable mail to Respondent was received by DALA.
A hearing had previously been scheduled, and the day prior to the hearing, Respondent sought a continuance. She sent a written request noting how she had been in a motor vehicle accident. The continuance was granted and the new hearing date of May 7, 2009 was established. In the new Notice of Hearing, Respondent was warned that she would not be entitled to another continuance without proof from her doctor that she was physically unable to attend the hearing. (Exhibit "B")
Late in the afternoon on May 6, 2009, DPH forwarded another request for a continuance it had received from Respondent. As the reason for this request, she listed the motor vehicle accident and included a form filled out by a chiropractor on May 4, 2009. This form contained only the statement that the respondent is under the chiropractor's care, and to avoid aggravation of a health condition, he recommends that she be excused from "all work activity through May 10, 2009." (Exhibit "C")
This note was given consideration, but determined to be insufficient proof that a doctor found Respondent physically unable to attend the May 7, 2009 hearing. Thereafter, on May 6, 2009, messages were left by DALA using two telephone numbers in the file for Respondent, explaining that the respondent's request for a continuance was denied and that the hearing would go forward the next day. DPH was also given notice of this ruling on May 6, 2009. Both parties were sent a written denial of this continuance request as well. (Exhibit "D")
In light of this course of events, I conclude that Respondent has failed to appear and to prosecute her request for hearing. Therefore, Respondent's claim for an adjudicatory hearing is dismissed with prejudice, and the contemplated action of Petitioner is allowed. Petitioner shall take appropriate action in accordance with 42 USC 1396r (g)(1)(c).
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
DATED: July 28, 2009