Bussoletti v. Department of Public Welfare
2012 Pa. Commw. LEXIS 335
| Pa. Commw. Ct. | 2012Background
- Recipient Luke Bussoletti, a 29-year-old with mental retardation, chronic bladder infection, and diabetes, receives PA Medicaid Waiver services since 2005 and lives in Greene County on an unpaved road.
- GCHS authorizes Waiver services; Recipient’s ISP includes community habilitation and transportation (zone 3); Pathways provides both and operates a day program five days weekly.
- Pathways announced on March 8, 2011 it would discontinue door-to-door transportation effective March 21, 2011, offering to meet at a paved location five miles away.
- Written notice of the decision was sent March 11, 2011 and Recipient timely appealed; Pathways discontinued door-to-door during the appeal pendency.
- The ALJ allowed modification to a non-door-to-door arrangement but ordered Pathways to continue door-to-door transportation during the pendency; Secretary upheld; Recipient seeks judicial review.
- Recipient can choose another provider (e.g., Green Arc) or have parents transport with mileage reimbursement; a $22,000 transportation budget exists in his ISP, but Pathways argued the cost is insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pathways’ modification violates DPW regulations | Pathways violated 55 Pa.Code § 52.61 and related rules by ending door-to-door service | Regulations permit modification when provider is unwilling to continue; no requirement to provide door-to-door if unwilling | No regulatory violation; modification permitted; continuation during pendency is separate issue addressed below. |
| DPW procedures during the appeal | ALJ failed to settle issues and provide a clear findings framework per 55 Pa.Code § 275.1(b)(2) | ALJ properly applied applicable regulations and conducted a fair hearing | ALJ reasonably conducted the hearing; any DPW procedure issues were not reversible. |
| Due process and equal protection | DPW/Pathways coerced consent, discouraged appeals, and deprived fair hearing rights; unequal treatment of providers vs. recipients | Recipients received notice, hearing rights, access to counsel, and opportunities to present evidence; no due process violation | No due process or equal protection violations found. |
| Illicit scheme and abandonment | DPW joined with Pathways in an unlawful scheme to require Recipient’s participation | Other Waiver options exist; DPW has not abandoned Recipient | No illicit scheme or abandonment; options for continued Waiver services available. |
Key Cases Cited
- Manor v. Dep’t of Pub. Welfare, 796 A.2d 1020 (Pa.Cmwlth.2002) (due process/notice and hearing requirements under DPW)
- Burns v. Pub. Sch. Emps.’ Ret. Bd., 853 A.2d 1146 (Pa.Cmwlth.2004) (equal protection considerations in administrative appeals)
- Woods Servs., Inc. v. Dep't of Pub. Welfare, 803 A.2d 260 (Pa.Cmwlth.2002) (standard of review for DPW final orders)
- Chambers ex rel. Chambers v. Dep’t of Pub. Welfare, 19 A.3d 1 (Pa.Cmwlth.2011) (DPW Waiver administration and appeals)