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decided: April 21, 1982.


Appeal from the Order of the Department of Public Welfare in the case of Appeal of Marguerite Matthews, Case No. 106296.


David Gates, for petitioner.

Douglas Block, Counsel, with him Stanley Slipakoff, Assistant Counsel, for respondent.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the resignation of Judge Mencer.

Author: Craig

[ 66 Pa. Commw. Page 276]

Marguerite Matthews appeals the final order of the Pennsylvania Department of Public Welfare (department) affirming a hearing examiner's order denying Matthews' appeal from the decision of the Bucks County Board of Assistance (county office) to reduce the level of the patient's nursing care benefits under the Medical Assistance program.

The patient, a double amputee with bilateral below-the-knee amputations, has been treated at Centennial

[ 66 Pa. Commw. Page 277]

Springs Health Care Center (Centennial), a skilled nursing care facility, where she receives physical therapy.

In June, 1980, Centennial's utilization review committee (URC) submitted a one-page utilization review form to the county office, recommending a lower level of care for the patient. The block captioned "Utilization Review Committee Comments and Recommendations" reads:

The Utilization Review Committee and the attending physician recommend a change in the level of care of Marguerite Matthews. Patient admitted from home 7/12/79 with diagnosis of bilateral B/K [below the knee] amputation, Chronic Obstructive Pulmonary Disease, Occlusive Vascular Disease. Receiving therapy four time a week, is able to ambulate with maximum assist with prosthesis and walker. Is independent in transfers and wheel chair. Is alert, oriented. Minimal assist with bathing. Medically stable.

In the square next to the words "Recommendation Discussed With Attending Physician," the word "YES" was inserted.

On August 19, 1980, the county office's medical review team considered the utilization review form and recommended that the level of care be changed from skilled to intermediate, effective September 1, 1980.

On appeal, the hearing examiner found that Centennial's records show that on May 16 and July 11, 1980,*fn1 Dr. Miller certified that the patient needed skilled care, and that on August 1, 1980, Dr. Miller

[ 66 Pa. Commw. Page 278]

    filled in a physician's evaluation form (in the record) certifying that skilled nursing facility care was necessary. The record also contains a written statement of Dr. Miller,*fn2 stating that he did not participate in the URC's recommendation and that he does not recall being consulted about a change in the patient's care.

The hearing examiner denied the appeal because she determined that the county office followed the procedural steps required by the department's regulations*fn3 and that the county office's decision was proper, based solely upon the information shown on the utilization review form. Lacking proof that the county office received Dr. Miller's denial of consultation with the URC, the hearing examiner disregarded that item.

Although the hearing examiner found that Dr. Miller ordered physical therapy for the patient, she decided that the patient is not entitled to continued care in a skilled care facility.

We must decide if the hearing examiner erred by concluding that a patient needing physical therapy, of the sort here required, is not entitled to treatment in a skilled nursing facility.

The hearing examiner's decision acknowledges that the services or benefits in a skilled care facility "may include" physical therapy. Section 9424.31 of the Medical Assistance Manual (MA manual). Also, the hearing examiner found that the patient needs physical

[ 66 Pa. Commw. Page 279]

    therapy as part of a maintenance program, which is within the federal definition of skilled care. 42 CFR § 405.127(c)(3).

Finding no conflict between MA manual § 9424.31 and 42 CFR § 405.127(c)(3), we conclude that the therapy needed here constitutes a skilled care service, but the question still is whether the patient is entitled to receive that therapy in a skilled care facility.

The statutory definition of "skilled nursing facility services," found at 42 USC § 1396d(f), provides in pertinent part:

[T]he term 'skilled nursing facility services' means services which are or were required to be given an individual who needs or needed on a daily basis skilled nursing care (provided directly by or requiring the supervision of skilled nursing personnel) or other skilled rehabilitation services which as a practical matter can only be provided in a skilled nursing facility on an inpatient basis.

Thus, for a patient who needs "skilled care," as defined by 42 CFR 405.127(c)(3), to be eligible for care in a skilled nursing facility, the care must also be:

(1) needed by the patient on a 'daily basis,' and

(2) available, as a practical matter, only in a skilled nursing facility on an inpatient basis.

The statutory requirement that a patient must need skilled rehabilitation services on a "daily basis" to qualify for care in a skilled care nursing facility is interpreted by 42 CFR § 405.128, which provides in part:

Skilled nursing services or skilled rehabilitation services must be required and provided on a daily basis. If skilled rehabilitation services are not available on a 7-day-a-week basis, a patient whose inpatient stay is based solely on the need for skilled rehabilitation services would meet

[ 66 Pa. Commw. Page 280]

    the 'daily basis' requirement where he needs and receives such services on at least 5 days a week. The requirements that skilled rehabilitation services be required on a daily basis should not be applied so strictly that it would not be met merely because there is a break of a day or two during which no skilled rehabilitation services are furnished and discharge from the facility would not be practical. (Emphasis supplied.)

Where, as here, the party with the burden below does not prevail, and the sufficiency of the evidence is challenged on appeal, the question we must decide is whether the factfinder capriciously disregarded competent evidence.*fn4 Capricious disregard of the evidence exists when a factfinder deliberately ignores evidence which a reasonable person would consider important. Kania v. Department of Public Welfare, 49 Pa. Commonwealth Ct. 136, 410 A.2d 939 (1980).

The hearing examiner's conclusion, that the patient does not need physical therapy on a daily basis, is contrary to the only competent medical opinion,*fn5 the attending

[ 66 Pa. Commw. Page 281]

    physician's statement that, from July 1979 through September 1980, the patient needed physical therapy five days a week, which constitutes a "daily" need under 42 CFR § 405.128, warranting a skilled nursing facility under 42 § 1396d(f). The hearing examiner ignored that statement of Dr. Miller only because it was not before the county office when the county office made its decision.

The hearing examiner also ignored Dr. Miller's statement giving his opinion that, as a practical matter, the care needed by this patient is only available in a skilled nursing care facility.

Under the regulations,*fn6 the hearing examiner should have considered all the facts in evidence at the hearing, not just evidence before the county office; the issue at the departmental hearing should not have been limited to whether the county office acted properly on

[ 66 Pa. Commw. Page 282]

    the facts before it. We must therefore decide that the hearing examiner capriciously disregarded competent evidence.

Accordingly, we reverse the department's order.


Now, April 21, 1982, the order of the Department of Public Welfare dated December 18, 1980, denying Marguerite Matthews' appeal from a decision to change her level of care from skilled to intermediate, is hereby reversed.

This decision was reached prior to the resignation of Judge Mencer.



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