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ALBERT BERRY v. COMMONWEALTH PENNSYLVANIA (05/21/79)

decided: May 21, 1979.

ALBERT BERRY, METHODIST HOSPITAL, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of Albert Berry, Methodist Hospital, dated March 3, 1978.

COUNSEL

Doris J. Dabrowski, with her Tabas, Horwitz & Furlong, for appellants.

Betty F. Perry, Assistant Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 42 Pa. Commw. Page 641]

Albert Berry (Applicant) was denied medical assistance by the Philadelphia County Board of Assistance (Board) by reason of its determination that the medical services for which the assistance was sought had not been performed within the 90 day period preceding the date of his application, as is required by a regulation of the Department of Public Welfare (DPW). After a fair hearing was conducted by a DPW hearing examiner, the appeals of Applicant and of the Methodist Hospital (Hospital), where Applicant was treated, were dismissed and denied, respectively. Both parties have appealed to this Court.

It appears from the record that Applicant was discharged from the Hospital on February 19, 1977. Applicant's insurance carrier tentatively approved 70 days of coverage which would have adequately covered the duration of Applicant's hospital stay. On February 25, the insurance carrier was billed approximately $10,200.00 for the medical services rendered. On May 11, the insurance carrier finally approved

[ 42 Pa. Commw. Page 642]

    only 25 days of coverage and subsequently remitted $4,275.00 to the Hospital, leaving an outstanding balance of about $6,000.00. On August 2, the Hospital submitted an application for medical assistance on Applicant's behalf. This application was ultimately denied by the Board on September 9, 1977.

While various questions have been raised for our consideration, only one need be addressed for present purposes. It is admitted by all concerned that the medical services for which assistance was sought were, in fact, rendered more than 90 days before the date of Applicant's claim and that a DPW regulation would preclude medical assistance therefor. This regulation, found at 55 Pa. Code ยง 141.81(g)(1), provides as follows:

Eligibility for any of the MA [Medical Assistance] services will begin with the service provided during the 90-day period preceding the date of application for Medical Assistance, if the applicant was eligible for the service during that period.

Applicant and the Hospital nevertheless argue (1) that the regulation should be "liberally" construed or "flexibly" interpreted to permit Applicant to recover, (2) that an exception should be made to the rule, given the extenuating circumstances of this case, or (3) that the rule should be invalidated.

Our research indicates that the regulation in question was promulgated to permit an individual to apply for assistance after he or she receives medical services. This provision is aimed at those persons whose incomes ordinarily exceed the level established for eligibility, but who have incurred a medical expense which, when subtracted from their income, brings them below that level. In other words, without having incurred the expense of a medical ...


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