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COLWELL v. MANAGED CARE OF NORTH AMERICA

Cite as 308 Neb. 597

Robert F. Colwell, Jr., D.D.S., and Robert 

F. Colwell Jr., DDS, P.C., appellants, v. 

Managed Care of North America, 

Inc., et al., appellees.

___ N.W.2d ___

Filed March 12, 2021. Nos. S-20-336, S-20-338.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Administrative Law: Judgments: Statutes: Appeal and Error. The 

meaning and interpretation of statutes and regulations present questions 

of law which an appellate court decides independently of the decision 

made by the court below.

3. Administrative Law: Judgments: Time: Appeal and Error. Generally, 

when a request for an appeal before an administrative agency is not 

timely pursuant to rules and regulations properly adopted by that 

agency, the agency does not have subject matter jurisdiction to hear 

the appeal.

4. Administrative Law: Judgments: Appeal and Error. When an administrative agency lacks subject matter jurisdiction over a claim, courts 

also lack subject matter jurisdiction on appeal.

5. Administrative Law: Statutes. For purposes of construction, a rule or 

regulation of an administrative agency is generally treated like a statute, 

because properly adopted and filed regulations have the effect of statutory law.

6. Administrative Law. Absent a statutory or regulatory indication to the 

contrary, language contained in a rule or regulation is to be given its 

plain and ordinary meaning.

7. ____. A rule or regulation is open for construction only when the language used requires interpretation or may reasonably be considered 

ambiguous.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/26/2021 08:08 AM CDT
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8. ____. A court will construe regulations relating to the same subject matter together to maintain a consistent and sensible scheme.

9. Administrative Law: Notice: Time: Appeal and Error. When the 

adverse action is termination, “the date of the action” for purposes of 

appeal under 471 Neb. Admin. Code, ch. 2, § 003.01A(3) (2015), is the 

date notice of the termination is issued, regardless of the termination’s 

effective date.

Appeals from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Affirmed.

John A. Svoboda and Eric J. Sutton, of Gross & Welch, P.C., 

L.L.O., for appellants.

Rodney C. Dahlquist, Jr., of Dornan, Troia, Howard, 

Breitkreutz & Conway, P.C., L.L.O., for appellee Managed 

Care of North America, Inc.

Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellees Nebraska Department 

of Health and Human Services et al.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Stacy, J.

In these consolidated appeals, a Medicaid dental provider 

assigns error to the district court’s dismissal of separate actions 

challenging the denial of an administrative appeal hearing 

before the Nebraska Department of Health and Human Services 

(DHHS). Because we agree with the district court that the hearing request was not timely submitted to DHHS under the governing regulation, we affirm the dismissals.

BACKGROUND

Robert F. Colwell Jr., DDS, P.C., is a Nebraska corporation through which Robert F. Colwell, Jr., D.D.S. (collectively Colwell), provides dental services. Managed Care of 

North America (MCNA) is a Florida company that provides 

managed care services to the State of Nebraska’s Medicaid 
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program. 1 In 2016, Colwell entered into a “Master Dental 

Provider Agreement” with MCNA, whereby Colwell agreed 

to provide dental services to children and adults enrolled in 

Nebraska Medicaid, and MCNA agreed to compensate Colwell 

for providing the services. The agreement was for an initial 

term of 1 year and had an automatic renewal provision for 

additional 1-year terms. Article X of the agreement stated that 

either party could terminate the agreement on 90 days’ written notice.

On April 5, 2019, Colwell filed a lawsuit against MCNA 

in the district court for Douglas County. That action alleged, 

among other things, that MCNA had failed to pay Colwell 

for covered services provided to Nebraska Medicaid patients. 

Colwell’s Douglas County suit is not part of the instant appeal, 

but we reference it because it forms the basis for one of the 

assignments of error.

On April 24, 2019, MCNA sent a certified letter to Colwell 

stating that, pursuant to article X of the provider agreement, 

MCNA was “providing notice of non-renewal” and terminating the Medicaid provider agreement with Colwell. The letter 

advised Colwell, “Your participation with MCNA will end at 

midnight on August 22, 2019, as a participating provider for 

MCNA’s Nebraska plan.” The letter also advised that until the 

“Termination Effective Date,” which the letter described as 

August 23, Colwell was to continue providing dental services 

to Medicaid enrollees under the terms of the agreement.

After receiving the termination letter, Colwell filed a motion 

for preliminary injunction in the Douglas County action, seeking to enjoin MCNA from terminating the provider agreement, 

and also amended the complaint to challenge MCNA’s termination decision. Our record indicates the preliminary injunction 

was denied in an order entered August 19.

On August 21, 2019, Colwell filed a “Request for Fair 

Hearing” with DHHS, seeking to appeal “MCNA’s letter of 

1 See 482 Neb. Admin. Code, ch. 1, § 001.01 (2013).
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4/24/19 terminating [the] Master Dental Provider Agreement.” 

On September 6, DHHS acknowledged the hearing request 

but informed Colwell via letter that the “appeal involve[d] an 

action by MCNA that [was] not appealable” to DHHS. Then, 

on September 17, DHHS issued an order formally dismissing 

Colwell’s hearing request.

On September 20, 2019, Colwell filed an action under the 

Administrative Procedure Act 2 (APA appeal) in the district 

court for Lancaster County, challenging the September 17 

DHHS order of dismissal. Then, on October 7, Colwell filed 

a petition in error 3 in the district court for Lancaster County, 

challenging the same DHHS dismissal order. Both the APA 

appeal and the petition in error named as defendants MCNA, 

DHHS, and various State officials, and both alleged that DHHS 

had erroneously dismissed Colwell’s request for a hearing on 

MCNA’s decision to terminate the provider agreement.

The district court for Lancaster County consolidated the two 

matters, after which MCNA moved to dismiss both, asserting 

that Colwell’s request for a hearing before DHHS had not been 

timely filed. Alternatively, MCNA argued that dismissal was 

appropriate under the doctrine of jurisdictional priority because 

Colwell’s previously filed lawsuit against MCNA was still 

pending in Douglas County and that lawsuit also challenged 

the termination.

At the hearing on MCNA’s motions to dismiss, counsel for 

all parties appeared, and the court received a certified copy of 

the official record and proceedings before DHHS. Additionally, 

MCNA offered certified copies of filings in Colwell’s Douglas 

County action against MCNA, which the court received over 

Colwell’s objection. On the record, counsel for DHHS and 

the other State appellees informed the court that they agreed 

with the arguments raised in MCNA’s motions to dismiss and 

that they stood by their position that Colwell had no right to 

2 Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue 2014 

& Cum. Supp. 2018).

3 Neb. Rev. Stat. § 25-1901 (Reissue 2016).
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a DHHS hearing on MCNA’s decision to terminate the provider agreement.

In an order entered April 20, 2020, the district court dismissed both the APA appeal and the error proceeding for lack 

of subject matter jurisdiction. The court found that DHHS 

had no authority to hold a hearing because Colwell’s request 

was untimely under 471 Neb. Admin. Code, ch. 2, § 003.01A 

(2015), which allows Medicaid providers to appeal adverse 

actions, but requires the written hearing request to be filed 

within 90 days of “the date of the action.” The district court 

found that the 90-day appeal period began running on April 24, 

2019 (the date of MCNA’s letter notifying Colwell of the termination decision), and that Colwell’s written hearing request 

was submitted on August 21, well outside the appeal period. 

The district court rejected Colwell’s contention that the “‘date 

of the action’” was August 23 (the termination effective date), 

reasoning that such a construction was contrary to the plain 

language of the regulation. The district court did not address 

MCNA’s jurisdictional priority argument, or any of the other 

arguments presented, generally reasoning that its resolution of 

the timeliness issue was both jurisdictional and dispositive.

A few days after the orders of dismissal were entered, 

Colwell filed a notice of appeal in both cases. Colwell also 

filed, and the district court overruled, motions to set super

sedeas bonds in both cases. The appeals were consolidated, and 

we granted the appellees’ petition to bypass.

ASSIGNMENTS OF ERROR

Colwell assigns, restated, that the district court erred by (1) 

receiving new evidence outside the administrative record; (2) 

dismissing the APA appeal and the error proceeding for lack 

of jurisdiction; (3) finding Colwell failed to timely file the 

request for an administrative hearing; (4) failing to find that 

Colwell’s hearing request to DHHS presented an appealable 

issue; (5) dismissing the APA appeal and the error proceeding without considering the merits of either, thus violating 
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Colwell’s due process rights; and (6) overruling Colwell’s 

motion to set a supersedeas bond.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law. 4

[2] The meaning and interpretation of statutes and regulations present questions of law which an appellate court decides 

independently of the decision made by the court below. 5

ANALYSIS

[3,4] Generally, when a request for an appeal before an 

administrative agency is not timely pursuant to rules and regulations properly adopted by that agency, the agency does not 

have subject matter jurisdiction to hear the appeal. 6 And when 

an administrative agency lacks subject matter jurisdiction over 

a claim, courts also lack subject matter jurisdiction on appeal. 7

Because the threshold jurisdictional issue in these consolidated 

appeals turns on whether Colwell’s written request for a hearing before DHHS was timely, we begin our analysis with the 

governing administrative regulations.

All parties agree that if Colwell had a right to an administrative appeal hearing before DHHS on these facts, it was 

governed by 471 Neb. Admin. Code, ch. 2, § 003 (2015). That 

regulation applies to Medicaid providers 8 and states in relevant part:

4 Omaha Expo. & Racing v. Nebraska State Racing Comm., 307 Neb. 172, 

949 N.W.2d 183 (2020).

5 See McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56, 

926 N.W.2d 660 (2019).

6 See Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. 905, 

620 N.W.2d 90 (2000) (superseded by statute as stated in In re App. No. 

C-4973 of Skrdlant, 305 Neb. 635, 942 N.W.2d 196 (2020)).

7 Id.

8 See 471 Neb. Admin. Code, ch. 2, § 001.01 (2015).
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2-003 Appeal Rights: Any adverse action under this 

Title may be appealed to the Medicaid Director by the 

person or entity against whom the action was taken.

2-003.01 Hearing Request Procedure: The person or 

entity appealing an adverse action must submit a written 

hearing request to the Department.

2-003.01A Deadlines:

1. Administrative sanctions must be appealed within 30 

days of the date of the action.

2. Refund requests must be appealed within 30 days 

of the date of the action indicated either on the Refund 

Report or the notice of action letter.

3. All other actions must be appealed within 90 days of 

the date of the action.

2-003.01B Appealing before effective date: A person or entity may appeal a termination or exclusion 

before the effective date of the proposed termination or 

exclusion. A termination or exclusion appealed before 

its effective date will not take effect until the appeal 

has been decided, unless the termination or exclusion is 

being imposed pursuant to 42 C.F.R. 455.416(c) or has 

an immediate effective date because of a threat to client 

health and safety.

2-003.02 Hearings: Appeal and hearing procedures are 

governed by Title 465, Chapter 6. 9

We pause to note that title 471 was amended in 2020, after the 

relevant events in these appeals. As a result of those amendments, the provisions previously found in § 003 are now in 471 

Neb. Admin. Code, ch. 2, § 007 (2020). This opinion refers 

to the regulations in effect at the time Colwell filed the hearing request.

Section 003.01A contains different appeal deadlines depending on the nature of the adverse action being appealed to 

DHHS. Colwell’s written hearing request sought to appeal 

9 Id., § 003.
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“MCNA’s letter of 4/24/19,” which notified Colwell of 

MCNA’s decision not to renew the provider agreement. For 

purposes of determining the timeliness of Colwell’s hearing 

request to DHHS, the parties generally equate MCNA’s non

renewal decision with a termination, and we accept that characterization. In fact, Colwell’s briefing plainly states that “[t]he 

adverse action being challenged is MCNA’s termination (without cause) of the [provider agreement].” 10 No party suggests 

the termination involved either a sanction or a refund request; 11

consequently, the deadline for Colwell to appeal MCNA’s termination, assuming without deciding that such a right existed, 

was governed by § 003.01A(3), which applies to “[a]ll other” 

adverse actions. Under § 003-01A(3), Colwell was required to 

submit the written hearing request to DHHS “within 90 days of 

the date of the action.”

The phrase “date of the action” is not defined in the subject 

regulation, and the parties urge different interpretations. For 

purposes of calculating the 90-day appeal period, the appellees contend the “date of the action” was April 24, 2019—the 

date on which MCNA issued notice of the termination decision. Colwell, on the other hand, contends the “date of the 

action” was August 23—the effective date of the termination. 

Under the appellees’ construction, Colwell’s August 21 hearing 

request was submitted well after the 90-day appeal period and 

was untimely. But under Colwell’s construction, the hearing 

request was submitted 2 days before the 90-day appeal period 

started, which Colwell argues is permissible under the regulatory scheme.

Given the parties’ contentions, the specific question to be 

resolved is this: When the adverse action is a termination notification with a future effective date, is the “date of the action” 

under § 003.01A(3) the date the termination notice is issued 

or the date the termination becomes effective? To answer this 

question, we apply settled rules of construction.

10 Brief for appellants at 15.

11 § 003.01A(1) and (2).
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[5-8] For purposes of construction, a rule or regulation of 

an administrative agency is generally treated like a statute, 12

because properly adopted and filed regulations have the effect 

of statutory law. 13 Absent a statutory or regulatory indication 

to the contrary, language contained in a rule or regulation 

is to be given its plain and ordinary meaning. 14 A rule or 

regulation is open for construction only when the language 

used requires interpretation or may reasonably be considered 

ambiguous. 15 A court will construe regulations relating to the 

same subject matter together to maintain a consistent and sensible scheme. 16

Colwell generally argues the phrase “date of the action” is 

not ambiguous, and we agree. Our construction is therefore 

controlled by the plain and ordinary meaning of the phrase. We 

focus first on the key word in this regulatory phrase—“action.”

Under the Nebraska Administrative Code, § 003 affords 

Medicaid providers the right to appeal “[a]ny adverse action” 

and § 003.01A(3) states that “actions must be appealed within 

90 days of the date of the action.” Given this regulatory framework, the “action” to which § 003.01A(3) refers is plainly the 

“adverse action” the provider intends to appeal.

Colwell admits “[t]he adverse action being challenged is 

MCNA’s termination,” 17 and it is undisputed that MCNA notified Colwell of that adverse action in the April 24, 2019, letter. Affording the regulatory language its plain meaning, we 

conclude “the date of the action” for purposes of § 003.01A(3) 

was April 24.

12 J.S. v. Nebraska Dept. of Health & Human Servs., 306 Neb. 20, 944 

N.W.2d 266 (2020).

13 Id.

14 Id.

15 See McManus Enters., supra note 5.

16 Id.

17 Brief for appellants at 15.
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In resisting this construction, Colwell argues instead that 

August 23, 2019 (the effective date of the termination), 

should be considered the “date of the action” for purposes of 

§ 003.01A(3). We reject this construction as unsound, for several reasons.

First, Colwell’s construction is imprecise; it conflates a detail 

of the adverse action with the action itself. When Colwell submitted the hearing request on August 21, 2019, Colwell challenged the April 24 termination notification, not the termination’s effective date. For Colwell’s proposed interpretation to 

make sense, the regulatory phrase “the date of the action” must 

be read to mean “the effective date of the action.” But that was 

not the language used by the drafters, and it is not within the 

province of the courts to read a meaning into a regulation that 

is not there. 18

Moreover, we cannot reconcile Colwell’s proposed construction with the plain text of the related tolling provisions in 

§ 003.01B. Section 003.01B expressly provides that when the 

adverse action is “termination,” the action may be appealed 

“before the effective date of the proposed termination,” and 

in that event, the termination “will not take effect until the 

appeal has been decided.” Expressly excluded from the tolling provision are terminations with “an immediate effective 

date.” 19 Because §§ 003.01A(3) and 003.01B relate to the 

same subject matter, we must construe them in a way that 

maintains a consistent and sensible scheme. 20 Reading these 

sections together, it is apparent that when the adverse action 

is termination, “the date of the action” and “the effective 

date of the proposed termination” have different meanings 

under the regulatory scheme and are not, as Colwell suggests, 

synonymous concepts. Instead, the provisions of § 003.01B 

address the reality that, to comply with the 90-day appeal 

18 Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002). Accord 

Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).

19 § 003.01B.

20 See McManus, supra note 5.
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deadline in § 003.01A(3), it may be necessary to appeal a 

termination before it becomes effective. And the provisions 

incentivize prompt appeal requests and maintain the status 

quo by tolling the effective date of the termination until the 

appeal has been decided.

But Colwell argues that § 003.01B should instead be construed to provide a more “comprehensive scheme” 21 that gives 

Medicaid providers the right to appeal terminations “at any 

time prior to the effective date of the termination” 22 and also 

gives them the right to appeal the termination for “90 days 

after” 23 the termination’s effective date. Colwell’s proposed 

construction, in addition to being contrary to the plain text of 

the regulation, also results in a regulatory scheme which is neither sensible nor consistent. 24

Allowing terminations to be appealed at any point before 

the effective date and for 90 days after the effective date would 

result in widely varying appeal windows. Under Colwell’s 

construction, a Medicaid provider who is notified of an immediate termination would have a 90-day appeal window and a 

Medicaid provider who is notified of a termination that takes 

effect in 6 months would have a 270-day appeal window. In 

contrast, the construction applied by the district court and 

advocated by the appellees would require all Medicaid providers to appeal within 90 days of the termination notice, regardless of whether the termination becomes effective immediately 

or sometime in the future. This gives the regulatory scheme 

a consistent and sensible meaning that encourages prompt 

appeals from adverse actions and applies the same 90-day 

appeal window to every Medicaid provider.

21 Brief for appellants at 20.

22 Id. at 19 (emphasis omitted).

23 Id. (emphasis in original).

24 See McManus, supra note 5 (holding court will construe regulations 

relating to same subject matter together to maintain consistent and sen

sible scheme).
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For the sake of completeness, we note that Colwell’s briefing also attempts to support the alternative construction by 

citing to other regulatory provisions and definitions within the 

Code of Federal Regulations and elsewhere in the Nebraska 

Administrative Code. We have carefully reviewed and considered each of the state and federal regulatory provisions cited 

by Colwell, and find all are inapposite. Little would be gained 

by an exhaustive comparison of the unrelated regulatory language, because none of the cited federal or state regulatory 

schemes address the same subject matter before us in these 

consolidated appeals. Our task is to determine the meaning 

of the phrase “date of the action” as used in the regulatory 

scheme governing a Medicaid provider’s right to appeal from 

an adverse action. Colwell’s reference to definitions in unrelated federal and state regulations does not inform our work or 

change the plain meaning of the phrase “the date of the action” 

in § 003.01A(3).

[9] In summary, we reject Colwell’s proposed construction because it would require that we read language into the 

plain text of the regulation, it cannot be reconciled with other 

provisions in the same regulation, and it would result in a 

regulatory scheme which is neither sensible nor consistent. We 

instead hold that when the adverse action is termination, “the 

date of the action” for purposes of appeal under § 003.01A(3) 

is the date notice of the termination is issued, regardless of 

the termination’s effective date. And to be timely, a written hearing request must be submitted to DHHS within 90 

days thereafter.

MCNA notified Colwell of the termination decision in 

the certified letter of April 24, 2019, and Colwell had 90 

days thereafter, or until July 23, to submit the written hearing request under § 003.01A(3). Because Colwell’s hearing 

request was not submitted until August 21, it was untimely, 

and DHHS therefore lacked subject matter jurisdiction over 

the appeal. 25 When an administrative agency lacks subject 

25 See Creighton St. Joseph Hosp., supra note 6.
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matter jurisdiction, the courts also lack subject matter jurisdiction on appeal, 26 and the district court correctly dismissed both 

the APA appeal and the error proceeding for lack of subject 

matter jurisdiction.

Because we affirm the district court’s dismissal for lack 

of subject matter jurisdiction, we do not address Colwell’s 

remaining assignments of error, and we express no opinion on 

Colwell’s use of both an APA appeal and a petition in error to 

challenge DHHS’ order of dismissal.

CONCLUSION

Because Colwell’s request for a hearing before DHHS was 

not timely filed within 90 days of “the date of the action” 

under § 003.01A(3), we affirm the district court’s dismissal for 

lack of subject matter jurisdiction.

Affirmed.

Miller-Lerman, J., not participating.

26 Id.