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decided: February 17, 1983.


Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Sylvia Powell, Re: Herbert Powell, dated April 29, 1981.


Sylvia B. Powell, petitioner, for herself.

Gary Goldman, Assistant Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 72 Pa. Commw. Page 157]

Sylvia B. Powell (appellant) appeals here an adjudication and order of the Department of Public Welfare (DPW) denying her request for abatement or modification of her current assessment of liability for the care of her husband (Herbert), an inpatient at Norristown State Hospital.

On August 19, 1980, the appellant was advised that liability for care of her husband was assessed at $220 per month effective as of July 1, 1980. The amount involved is approximately 50% of Herbert's Social Security benefits. Prior to this latest assessment, the liability had been set at $125, which was approximately 33 1/3% of said benefits.*fn1 The appellant filed a request for abatement or modification which was denied by the Office of Mental Health. An appeal was taken from that decision on October 16, 1980 and the

[ 72 Pa. Commw. Page 158]

    hearing officer recommended denial of the appeal on April 29, 1981. This recommendation was followed and the order of the DPW was filed the same day. The appeal to this Court followed.

The appellant had the burden of proving her right to an abatement or modification. Tartaglia v. Department of Public Welfare, 52 Pa. Commonwealth Ct. 579, 416 A.2d 608 (1980). And where, as here, the party with the burden of proof has failed below, our scope of review is limited to a determination of whether or not the adjudication was in accordance with law, whether or not the appellant's constitutional rights were violated, Skehan v. Department of Public Welfare, 30 Pa. Commonwealth Ct. 419, 373 A.2d 1364 (1977), and whether or not the hearing officer's findings of fact can be upheld without a capricious disregard of competent evidence. Nunley v. Department of Public Welfare, 54 Pa. Commonwealth Ct. 10, 419 A.2d 240 (1980).

The appellant, who has proceeded pro se in the matter, argues first that her due process rights have been violated by the DPW's denial of her request for abatement or modification.

Our analysis of the case must, of course, begin with the statutory scheme. Section 501 of the Mental Health and Mental Retardation Act of 1966 (Act), Act of October 20, 1966, Special Sess. No. 3, P.L. 96, 50 P.S. § 4501, provides that liability is imposed upon the individual committed, and that the government may recover the expended public funds from that party, subject to the regulations of the department. The DPW regulations, 55 Pa. Code § 5404.4,*fn2 provide that "when the client receives residential services and is the recipient of benefits, 50% of these benefits are assessable. . . ." The 50% figure is not wrought in iron, for a

[ 72 Pa. Commw. Page 159]

    statutory and regulatory scheme exists whereby that assessment can be modified or abated.*fn3 This scheme speaks in terms of "substantial hardship", "extraordinary circumstances" and the like. Although the appellant

[ 72 Pa. Commw. Page 160]

    asserts that these circumstances exist, e.g. commuting expenses to visit her husband and her son's medical college expenses, the hearing officer found that, in addition to her husband's Social Security payments, the appellant has a gross weekly income of $225. The hearing officer heard the testimony at the hearing, and held that the alleged extraordinary circumstances were not documented. Inasmuch as the appellant clearly had an opportunity to demonstrate the circumstances which would warrant abatement or modification and failed to carry her burden, Tartaglia, we cannot say that due process was denied her.

The appellant argues next that the hearing officer erred in not reviewing the assessment for the previous year. There is clearly no error here, for 55 Pa. Code § 5403(a)*fn4 states: "there shall be a redetermination of liability as frequently as warranted . . . , but no less frequently than: a. Every 12 months for clients receiving continuous service. . . ."

The appellant argues further that the DPW denied her due process pursuant to the Federal Social Security regulations governing use of benefits by a representative payee in their assessment of liability based on these benefits. Her brief discusses many Social Security regulations which have little or no relevance to this proceeding. One regulation, however, which was not noted by the appellant but was cited to this Court by the DPW, provides that, when the recipient is hospitalized, the payee shall "give highest priority to expenditure of the payments for the current maintenance needs of the beneficiary, including the customary charges made by the institution. . . ." 20 C.F.R. § 404.1606 (1980). We agree with the DPW that the Act and its regulations are not inconsistent with the Federal plan, and accordingly, cannot find a violation of due process here.

[ 72 Pa. Commw. Page 161]

The appellant argues finally that the DPW adjudication was untimely pursuant to 55 Pa. Code § 5405.4,*fn5 which provides:

Hearings are scheduled for as early a date as possible so that prompt, definitive and final administrative action will be taken within 60 days from the date of the hearing request. The appellant, his representative if any, and the Institution or County Mental Health/Mental Retardation Unit, as applicable are notified in writing of the time, date and place of the hearing. The notice is sent at least a week in advance of the hearing. (Emphasis added.)

We agree with the appellant that the decision herein was clearly untimely and, given the mandatory language of the regulation, we believe that the regulation should have been scrupulously followed. The appellant filed a request for hearing on October 16, 1980. After a hearing on December 19, 1980, it was not until April 29, 1981, four months after the hearing date and six months after the request for a hearing, before definitive and final administrative action was taken. We believe the appellant was clearly prejudiced by this delay and, inasmuch as the final decision as to modification or abatement was not reached until April 29, 1981, the appellant should not be required to submit the reassessed figure (50%) prior to that date. We hold that the previous percentage (33 1/3%)*fn6 remained in effect through April 29, 1981, at which time, the reassessment percentage of 50% takes effect.

Accordingly, the adjudication of the DPW is affirmed except that for the period from July 1, 1980 to April 29, 1981, the appellant is to be assessed at 33 1/3% of the Social Security benefits.

[ 72 Pa. Commw. Page 162]


And Now, this 17th day of February, 1983, the order of the Department of Public Welfare in the above-captioned matter is hereby affirmed.

However, from the period beginning July 1, 1980 and ending April 29, 1981, the Department of Public Welfare is directed to assess liability at 33 1/3% as per the previous assessment.


Affirmed as modified.

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