41 Pa. Commw. 31 | Pa. Commw. Ct. | 1979
Opinion by
Petitioner, a resident of a skilled care nursing facility, appeals from a final order of the Department of Public Welfare (Department) which sustained the reclassification of petitioner’s level of care under the Medical Assistance Program
Petitioner has been a resident of Rest HavenWhitemarsh Nursing Center, a skilled care facility,
Petitioner contends that in view of his chronic illnesses it was an error of law and an abuse of discretion for the Department to conclude that he did not qualify for skilled nursing care. The difficulty with this argument is that the record does not show that the petitioner suffers from these diseases to the degree that would require the type of nursing care that is provided in a skilled nursing care facility. See Medical Assistance Manual §9424.32. The fact that
Petitioner also contends that because he was unrepresented by counsel at the hearing, he was unable to prepare an adequate defense with regard to the traumatic effect of his transfer to an intermediate care facility. This argument is raised for the first time in petitioner’s brief. It was not assigned as error in this appeal. No request has been made for a rehearing. Therefore, we will not consider that argument.
The petitioner’s condition has been classified as needing only intermediate care by examinations in 1974, 1975 and 1977. Two officials of the nursing center who were familiar with petitioner’s daily environment, one of whom we note was the Director of Nurses, provided evidence on the care he needs, including some aspects of his medical condition. Further, we are impressed by petitioner’s own testimony that although he wished to remain at the center, “I am one of the not too many patients [there] who are completely, naturally competent.... I have determined that I will do everything I can for myself as long as I can.” Given such evidence, we must conclude the Department did not abuse its discretion in accepting the recommendation of the Hearing Examiner.
Accordingly, we will enter the following
Order
And Now, March 1, 1979, the order of the Department of Public Welfare dated November 7, 1977, denying the appeal of petitioner fr;m a decision to re
Established pursuant to the Medicare Act, 42 U.S.C. §1896 et seq.