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FRANK SHAPPELL FOR SHARON SHAPPELL v. COMMONWEALTH PENNSYLVANIA (06/02/82)

decided: June 2, 1982.

FRANK SHAPPELL FOR SHARON SHAPPELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of: Frank Shappell for Sharon Shappell, Case No. 46028-J.

COUNSEL

Lorenzo W. Crowe, Jr., for petitioner.

William D. Lenahan, Assistant Counsel, for appellee.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case.

Author: Macphail

[ 66 Pa. Commw. Page 642]

Claimant,*fn1 Sharon Shappell, is a 32 year old who is totally dependent upon her parents. She has been a

[ 66 Pa. Commw. Page 643]

    victim of cerebral palsy since her birth. In May of 1980, Claimant was hospitalized for a serious medical problem which required surgery. Following that operation, Claimant began feeding on "Complete B", a commercially prepared food supplement in puree form. When she returned home she was given a combination of home formula and commercially made Complete B. Complications set in and Claimant returned to the hospital where she was again fed Complete B. This time, when she returned home, her father fed her Complete B until he felt he could no longer afford it, whereupon he applied to the Medical Assistance Unit of the Northampton County Board of Public Assistance (CBPA) for a program exception to Department of Public Welfare (DPW) regulations*fn2

[ 66 Pa. Commw. Page 644]

    to permit compensation for Complete B. This request was forwarded to the Bureau of Policy and Program Development Office of Medical Assistance of DPW which denied the program exception requested by Claimant. Claimant appealed that ruling to the CBPA. A hearing was conducted, and on January 15, 1981 the hearing officer denied Claimant's appeal. Claimant filed a request for reconsideration on February 6, 1981, but that request was denied as untimely filed.*fn3

Both parties agree that Complete B is a non-compensable medical expense, therefore the only question left for our disposition is whether DPW abused its discretion in excluding from coverage Complete B by denying a program exception under 55 Pa. Code § 1101.32(c). Evidence admitted at the hearing indicated that both Claimant's physician and the dietary unit of the hospital where she had been treated indicated that Complete B was preferable to home blended puree. DPW's physician testified that while Complete B was more convenient, it was not medically necessary for the Claimant's physical maintenance.

[ 66 Pa. Commw. Page 645]

Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a-1396i established the Medical Assistance Program to provide help for needy persons in participating states. The Commonwealth of Pennsylvania is participating and its medical program is administered by DPW pursuant to Sections 441.1-451 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, added by Section 5 of the Act of July 31, 1968, P.L. 904, as amended, 62 P.S. §§ 441.1-451. Those states participating in this federally funded program "must administer their programs in conformity with certain federal statutory and regulatory guidelines." Marsh v. Department of Public Welfare, 48 Pa. Commonwealth Ct. 216, 218, 409 A.2d 926, 927 (1979). As stated in Marsh, states are not required to fund every medical procedure. "They have broad discretion in setting standards for determining the extent of medical assistance to be provided. The standards, however, must be reasonable and must be consistent with the objectives of Title XIX." Id. at 218, 409 A.2d at ...


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