Exceptions to administrative ruling must be timely filed and substantial compliance offers no relief in licensing of child placement facility: COM. V.COPPER CARE, INC.

ADMINISTRATIVE APPEAL:  Sustantial compliance not apply and exceptions not timely

2007-CA-000676 521
DATE RENDERED: 5/25/2008

The Cabinet for Health and Family Services (the Cabinet) appeals circuit court order denying its motion for summary judgment against Copper Care, Inc. (Copper Care). The issue raised is whether the circuit court properly held that the Stapletons’ exceptions to the hearing officer’s findings of fact, conclusions of law, and recommended order were timely filed.  COA reversed.

The Cabinet issued a “Notice of Revocation and Preliminary Order to Close” seeking to revoke Copper Care’s license based on its alleged failure to meet the standards in the administrative regulations promulgated pursuant to KRS 199.640 for a child-placement agency. Following an administrative hearing Copper Care filed exceptions 18 days later, and not 15 days.  The Cabinet accepted the hearing officer’s recommended order, and Copper Care filed a complaint in the Madison Circuit Court seeking review of the Cabinet’s order. In addition to its answer, the Cabinet filed a motion for summary judgment arguing that, as a matter of law, the exceptions were untimely filed

To reconcile judicial decisions with the recently amended CR 73.02(2), the Court held that dismissal of an appeal is not an appropriate remedy “so long as the judgment appealed from can be ascertained within reasonable certainty from a complete review of the record on appeal and no substantial harm or prejudice has resulted to the opponent.”

The issue in this case does not concern CR 73.02. The time for filing exceptions in an administrative proceeding is governed by statute and is a step in the administrative review process.  The language contained in KRS 13B.110(4) is unequivocal and requires that exceptions be filed within fifteen days from the date the recommended order is mailed. Absent legislative authority to the contrary, the substantial compliance doctrine is not applicable.

The trial court erroneously concluded that the substantial compliance doctrine saved Copper Care from the consequences of the untimely filing of its exceptions. Although not a jurisdictional defect, the filing of exceptions is, in this case, fatal.

Since Copper Care’s exceptions were untimely filed, there was no issue properly preserved for review. As a consequence, the circuit court erred when it denied
the Cabinet’s motion for summary judgment. The summary judgment entered in favor of Copper Care is reversed and the case remanded for the entry of an order granting the Cabinet summary judgment.

By Michael Stevens

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