El-Attrache v. Pennsylvania Ins. Dept.

Citations: 900 A.2d 455; 2006 Pa. Commw. LEXIS 273

Court: Commonwealth Court of Pennsylvania; June 1, 2006; Pennsylvania; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Selim El-Attrache, M.D. appeals the Pennsylvania Insurance Commissioner's denial of his late application for an MCARE Fund 2003 assessment abatement. The MCARE Fund was established in 2002 to handle malpractice claims, funded by annual assessments on participating health care providers. Act 44 introduced a Retention Program allowing for a 50% to 100% abatement of assessments for 2003 and 2004. Applications for abatement were required to be filed by February 15, 2004, but due to scheduling conflicts, the actual deadline became February 17, 2004.

The Department of Insurance announced the requirement for abatement applications and provided assistance through a hotline. On February 11, 2004, Dr. El-Attrache's assistant attempted to submit the application online, but a technical issue prevented the hard copy from printing. Although the computer functioned correctly otherwise, she mistakenly believed the application had been submitted successfully and did not verify its status or send the necessary hard copy and supporting documents.

Subsequent applications for 2004 and 2005 were submitted and approved, but Dr. El-Attrache only learned of the failed 2003 application on February 21, 2005. His request to file the 2003 application after the deadline was denied due to the one-year delay and the absence of the required submissions, including the declarations page of his policy and a completed Certificate of Retention.

Dr. El-Attrache and Knopsnider did not contact the MCARE Fund hotline for assistance with the abatement application. Following a late application submission, Dr. El-Attrache sought a review from the Department's Administrative Hearings Office, citing a technical issue with electronic submission as the reason for his tardiness. The case was resolved based on a joint stipulation of facts and forwarded to the Commissioner. The Commissioner ruled that Act 44 imposes strict deadlines without flexibility or exceptions, denying Dr. El-Attrache's request for an exemption, as there were no extraordinary circumstances or breakdowns in the administrative process justifying a late submission.

Act 44 mandates timely filing for assessment abatement eligibility, with exceptions only applicable if a breakdown in the administrative process or extraordinary circumstances can be demonstrated. Dr. El-Attrache argued he met this burden based on several points: Knopsnider successfully submitted the application electronically, a failure in the electronic process occurred, the Department controlled that process, and his computer was functional. However, the Commissioner noted that even if the Department's system failed, it only indicated that Dr. El-Attrache's initial attempt to file electronically was unsuccessful. The lack of response to a 'white' screen signal and the failure to send a required hard copy to the Department further undermined his position. Given these undisputed failures to act timely and seek assistance, the Commissioner concluded that Dr. El-Attrache did not prove non-negligent circumstances to warrant a nunc pro tunc filing for the 2003 application.

Failure to ensure compliance with filing deadlines does not qualify as a special circumstance that excuses late submissions, as established in Upper Allegheny Joint Sanitary Authority v. Department of Environmental Resources. The order from the Pennsylvania Insurance Department's Commissioner, No. MM05-05-019, is affirmed as of June 1, 2006. The excerpt outlines legislative changes affecting healthcare liability, specifically the replacement of the Medical Professional Liability Catastrophe Loss Fund with the MCARE Fund, which was designed to cover claims against participating healthcare providers beyond basic insurance. Act 13, which repealed the Health Care Services Malpractice Act, transferred the rights and obligations of the previous fund to the MCARE Fund. Provisions for assessment abatements for healthcare providers were also established but are now repealed. The specific issue arose when Dr. El-Attrache's insurer billed him for a 2003 assessment without acknowledging an abatement request made for that year, which was only recognized by MCARE in February 2005. The review of agency adjudications is limited to constitutional compliance, adherence to agency procedure and law, and the sufficiency of factual evidence.

In Connecticut General Life Insurance Company v. Pennsylvania Life and Health Insurance Guaranty Association, the Supreme Court established that a nunc pro tunc appeal may be permitted if the appeal is delayed due to non-negligent circumstances affecting either the appellant or their counsel, provided the appeal is filed shortly after the party becomes aware of the delay, and no prejudice is suffered by the appellee. The case involved Dr. El-Attrache, who refrained from filing a second online application due to perceived penalties but failed to cite any statutory authority for this claim. The relevant statute mandates that a health care provider seeking abatement must submit several documents, including: a statement of practice and specialty, proof of payment for the MCARE Fund assessment for the previous year, evidence of medical professional liability insurance premiums for two years, a signed certificate of retention for continued practice, a certification of eligibility, and any additional information required by the Department.