XXX
Appearing on behalf of Petitioner in pro per
STATE OF XXX
OFFICE OF ADMINISTRATIVE COURTS
STEP BY XXX HOME HEALTH CARE,
LLC,
Petitioner,
vs.
STATE DEPARTMENT OF HEALTH CARE
POLICY AND FINANCING,
Respondent.
Case No.: SR XXX
MOTION FOR RECONSIDERATION OF
THE ORDER ISSUED ON XXXX
NOTICE OF MOTION FOR RECONSIDERATION OF THE ORDER ISSUED ON
XXXX
You are notified that on ____________ (Date), at _______ (am/pm), or as soon thereafter as the
Defendant can be heard before the Office of Administrative Courts at
___________________________________________ (Address), Petitioner will bring on for
hearing its Motion for Reconsideration of the Order Issued on 07/13/2022 for the reasons stated
in the attached Motion.
Dated this ____ day of XXXX.
Yours Sincerely,
___________________________________
XXX
Appearing on behalf of Petitioner in pro per
XXX
Appearing on behalf of Petitioner in pro per
STATE OF XXX
OFFICE OF ADMINISTRATIVE COURTS
STEP BY FAITH HOME HEALTH CARE,
LLC,
Petitioner,
vs.
STATE DEPARTMENT OF HEALTH CARE
POLICY AND FINANCING,
Respondent.
Case No.: XXX
MOTION FOR RECONSIDERATION OF
THE ORDER ISSUED ON XXX
NOW COMES Step by XXX, LLC, and files this Motion for
Reconsideration of the Order Issued on XXX(hereinafter referred to as the “Order”), and
for cause would show this Honorable Office as follows:
1. On XXXX, this Office issued an Order denying Petitioner’s Motion for
Extension of Time. Petitioner seeks an order reconsidering the Office’s decision to deny its
Motion for Extension of Time.
2. “A Rule 59(e) motion to alter or amend the judgment should be granted only to
correct manifest errors of law or to present newly discovered evidence.” Phelps v. Hamilton, 122
F.3d 1309, 1324 (10th Cir. 1997) (quotation marks omitted); see also Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (“Grounds warranting a motion to reconsider
include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.”).
3. It is necessary to reconsider the Office’s decision to deny Petition reason for the
reasons that there is the need to correct a clear error and prevent manifest injustice.
4. Discovery was not properly conducted. Respondent did not deliver proper
exhibits to Petitioner as it was required. When Petitioner brought that up, no sanctions were
issued against Respondent and no order was issued to compel Respondent to avail discovery to
Petitioner. Respondent has stated that it made an error in failing to avail discovery to Petitioner.
5. Petitioner has a strong case against Respondent and wishes to be allotted time to
organize and present it. XXXX is acting and appearing on behalf of Petitioner but does
not have the legal knowledge and experience to match that of Respondent’s counsel. In that
regard, it is only fair to allow him more time. During the trial, XXX was not granted
enough time as Respondent’s counsel. Petitioner also wishes that discovery be availed to him so
it can prove its claims against Respondent.
6. This Office erred when it considered Respondent’s unsworn affidavit in rendering
its decision. Petitioner presented two sworn affidavits that were not considered by this Office in
its decision.
7. In order to prevent manifest injustice, it is only proper to reconsider the Order.
I) JURISDICTION
8. Colorado Courts generally treat mandatory time limits for commencing appeals as
jurisdictional. Therefore, a late appeal deprives the reviewing court of authority to hear it. See
People v. Donahue, 750 P.2d 921, 922 (Colo. 1988). Colorado Courts apply this same rule for
administrative appeals and, therefore, failure to timely appeal an administrative action is
generally considered a jurisdictional defect.
9. In Obert v. Colo. Dep’t of Social Services, 766 P.2d 1186, 1190 (Colo. 1988), the
preceding case, the court held that the court it did not have jurisdiction to consider the appeal on
its merits and could not correct the underpayments and termination of AFDC and Medicaid
assistance to Obert, and dismissed Obert’s appeal. Obert sought judicial review of the hearing
officer’s decision in the district court pursuant to section 24-4-106, 10A C.R.S. (1988). The
district court found that there may be facts in the administrative record which support Obert’s
claims, but concluded that the hearing officer correctly held that he lacked jurisdiction to rule on
the merits of Obert’s appeal. Accordingly, the district court entered an order affirming the
decision of the hearing officer. The court of appeals concluded that the "fact of underpayment
must be established before it can be corrected" and held that no provision of law requires further
hearings when a recipient fails to appeal an erroneous agency action within the time mandated by
law. In the current case, the court should deal with the issue of the non-payment of the Petitioner
before dismissing the action on the basis of lack of jurisdiction.
10. Further, in the case of Cramer v. Indus. Claim Appeals Office, 885 P.2d 318, 319
(Colo. App. 1994), the Respondent contended that the forty-day time limit of § 8-43-501(5)(c),
C.R.S. (1993 Cum.Supp.) is not jurisdictional. He further argued that, in the absence of explicit
language in the statute so specifying, it does not constitute and cannot be read constitutionally to
be a jurisdictional requirement. However, the court disagreed with his contention. The court
stated that the procedural requirements for review in the Workers’ Compensation Act constitute
limitations on administrative jurisdiction, and these jurisdictional limitations cannot be waived or
eliminated by consent and cannot be avoided by estoppel. Hasbrouck v. Industrial Commission,
685 P.2d 780 (Colo. App.1984). See also Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193
(Colo.App. 1991). This principle is as applicable to an appeal from a M-U-R order as to any
other appeal proceeding in the Workers’ Compensation Act. The Court also held that it has the
power to grant extensions of time for good cause and the same could not overcome the
jurisdictional time limitation on filing a notice of appeal.
11. In Country View Care Ctr., Inc. v. Colo. Dep’t of Soc. Services, 703 P.2d 1334,
1335 (Colo. App. 1985), the court stated that Mandatory time limits for commencing
administrative appeals are generally treated as jurisdictional. It also referred to Vieweg v. B.F.
Goodrich Co., 170 Colo. 71, 459 P.2d 759 (1969); Yanish v. Industrial Commission, 38 Colo.
App. 492, 558 P.2d 1007 (1976). When Country View did not appeal within the 15 days after the
retroactive rate adjustments were announced, those adjustments became final and were no longer
subject to appeal. Further reference was made to State Personnel Board v. Gigax, 659 P.2d 693
(Colo. 1983). Therefore, the hearing officer, the Department, and the district court, correctly
determined that Country View could not challenge the rate adjustments in its appeal of the
collection of the overpayment.
12. The Court in reaching this conclusion, it is not necessary to address the question
whether the issuance of a rate adjustment letter triggers the jurisdictional 15-day requirement in
all cases. For, as the hearing officer noted:
"Petitioner did not simply miss the 15-day deadline; it let the rate determination stand for
a period of years. No appeal from, or challenge to, the rate letter was made within any
reasonable time. Even if failure to meet a short deadline could be excused for unusual or
extenuating circumstances, the issue must still be raised within a reasonable time. Here, the
adjustment of positions and rights stemming from the rate letter has occurred. The situation here
presented may be analogized to an attempt to challenge, on the original merits, a default
judgment untainted by fraud and entered with jurisdiction when collection is commenced two
years after its entry. Such a challenge is clearly not permitted. See [C.R.C.P. 60(b)]"
13. Further, Colorado regulation states that a provider “may appeal a notice of
Adverse Action by filing a written appeal within thirty (30) calendar days from the date on the
notice of Adverse Action.” § 8.050.3.A. The filing date is “the date the Office of Administrative
Courts receives the appeal.” § 8.050.3.C. The regulation uses mandatory language, directing that
“[f]ailure to file a timely appeal shall result in dismissal of the appeal.”
14. In Farmers Ins. Grp. v. Dist. Ct. of Second Jud. Dist., the Colorado Supreme
Court held that in narrow instances, Courts may consider motions submitted after the expiration
of a period specified in the Colorado Rules of Civil Procedure where the failure to act was a
result of excusable neglect. Farmers Ins. Grp. v. Dist. Ct. of Second Jud. Dist., 181 Colo. 85, 88,
507 P.2d 865, 867 (1973) (holding that Plaintiff failed to meet its burden of showing that its
failure to comply with C.R.C.P. 25(a)(1) was due to excusable neglect). The Court expressly
stated:
“Excusable neglect involves a situation where the failure to act results from
circumstances which would cause a reasonably careful person to neglect a duty. . . . in general,
most situations involve unforeseen occurrences such as personal tragedy, illness, family death,
destruction of files, and other similar situations which would cause a reasonably prudent person
to overlook a required deadline date in the performance of some responsibility. Failure to act
due to carelessness and negligence is not excusable neglect.”
15. Mistake or ignorance of the applicable law does not constitute excusable neglect.
Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 321-22 (Colo. 2010);
Adams v. Sagee, 2017 COA 133, ¶ 3, n.1. Parties do not demonstrate excusable neglect where
their failure to file timely is a result of “poor office procedures and an apparently overwhelming
workload[.]” Goodman v. WP Mountain, 222 P.3d at 322.
16. Notwithstanding SBF claiming that as of April 28, 2020, it subjectively believed
that the Department had not reached a decision on the Claims, its conduct establishes SBF’s
awareness of the Department’s denial and payment of these claims. Given SBF’s awareness that
the Department had reached a determination on these claims coupled with its failure to act on the
RA letter made available for its review, SBF cannot demonstrate excusable neglect sufficient to
excuse its untimely appeal. Finally, the issue of SBF’s request to backdate enrollment is
unrelated to whether it complied with the Department’s timely filing requirements.
II) FILING OUT OF TIME
17. The appeal was erroneously dismissed by the court since it was filed within time.
The Respondent relied on the case of People v Donahue, 750 P.2d 921, 922 (Colo. 1988). In the
preceding case the court relied on the Colorado regulation that provides that a provider may
appeal a notice of Adverse Action by filing a written appeal within thirty calendar days from the
date on the date on the notice of Adverse Action”
18. Nonetheless, Farmers Ins. Group v District Court 181 Colo. 85, 89, 507 P. 2d
865, 867 (1973), the Supreme Court of Colorado held that excusable neglect involves a situation
where a failure to act results from circumstances which would cause a reasonably careful person
to neglect a duty. It is impossible to describe the myriad of situations showing excusable neglect,
but in general, most situations involve unforeseen occurrences such as personal tragedy, illness,
family death, destruction to overlook a required deadline date in the performance of some
responsibility.
19. However, failure to act due to carelessness and negligence is not excusable
neglect as was held in Doyle v Rice Ranch Oil Co. 28 Cal. Pp.2d 18, 81 P. 2d 980. Accordingly,
the delayed service of the Notice of Adverse Action dated the 27 th day of March 2022
subsequently resulted in the petitioner’s delayed filing hence justified and falls within the ambit
of exceptions of filing out of time.
20. In the current instance, the Respondent claims that the Petitioner was required to
file the Notice of Appeal by XXX which was 30 days from when the Petitioner
allegedly got the Notice of the Adverse Action, the Department’s Provider Remittance Advice
dated XXX. Nonetheless, the Petitioner did not actually receive the Notice of the
Adverse Action dated the XXX day of March 2020 as alleged hence the Respondent cannot rely on
the date of the alleged Notice.
21. The said appeal was thus dismissed without the Petitioner’s knowledge and upon
inquiry from the court and the respondent, it was revealed that the issues between the Petitioner
and Respondent had been resolved in the Appeal Case No: HE 2020-007. This is despite the
issue regarding payment to the Petitioner not being dealt with. The Motion to Dismiss the Appeal
and the subsequent dismissal of the same thus denied the Petitioner a fair trial.
III) FAIR TRIAL
22. Further, Rule 25 of the Colorado Rules of Appeal provides as follows:
“The appellate court may, in whole or in part, dismiss an appeal; affirm, vacate, modify,
reverse, or set aside a lower court judgment; and remand any portion of the case to the lower
court for further proceedings. When reviewing a ruling or judgment dismissing criminal charges,
the appellate court may approve or disapprove of the judgment if retrial of the defendant is
prohibited. The appellate court may dismiss an appeal or affirm a lower court judgment without
opinion, but it must issue a written opinion when vacating, modifying, reversing, setting aside, or
remanding any portion of the lower court judgment.”
23. Accordingly, the dismissal of the Petitioner’s Appeal would only be fair if the
court provided the reasons for the dismissal of appeal which the court is yet to. Further, the
respondent did not serve the Petitioner with proper exhibits. Subsequently, the Petitioner
informed the Court but it neither took any action nor issued orders as to the service of the correct
exhibits. Hence a demonstration of an unfair trial.
REASONS WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully requests
this Honorable Office to GRANT this Motion for Reconsideration of the Order Issued on
07/13/2022.
Dated this ____ day of XXXX.
Yours Sincerely,
___________________________________
XXX
Appearing on behalf of Petitioner in pro per
VERIFICATION
I, XXX, being duly sworn depose and say that I have read the foregoing Motion for
Reconsideration of the Order Issued on XXX and know the contents thereof. That the same
is true of my own knowledge except as to those matters and things stated upon information and
belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of XXX.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
This is to certify that I have duly served the within Motion for Reconsideration of the Order
Issued on XXXX upon all parties herein via email this ____ day of XXX addressed as
follows:
XXX
Dated this ____ day of XXXX.
Yours Sincerely,
___________________________________
XXXX
Appearing on behalf of Petitioner in pro per
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )