Appeal from the Order of the Department of Public Welfare in case of Appeal of: Sylvia Weiss, dated April 28, 1980.
Janet A. Conser, for petitioner.
Jules S. Henshell, Assistant Counsel, with him Howard Ulan, Assistant Attorney General, for respondent.
President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 77 Pa. Commw. Page 354]
Sylvia Weiss appeals a Public Welfare Department order upholding a hearing examiner's decision to deny her appeal of a liability assessment notice. We remand.
Sylvia Weiss is the mother of Mitchell Weiss, a patient at Retreat State Hospital. The Department notified Sylvia of a $99 liability assessment against Mitchell's $198 monthly social security benefit. Sylvia, as Mitchell's representative payee, sought abatement or modification of the assessment, but it was denied.
The party requesting abatement or modification of a liability assessment bears the burden of proving the existence of grounds showing the necessity for it. Tartaglia v. Department of Public Welfare, 52 Pa. Commonwealth Ct. 579, 416 A.2d 608 (1980). Where that party has failed below, our scope of review is limited to a determination of whether the party's constitutional
[ 77 Pa. Commw. Page 355]
rights were violated, whether the adjudication is consonant with the law, and whether the hearing examiner's factual findings can be upheld without capricious disregard of competent evidence. Powell v. Department of Public Welfare, 72 Pa. Commonwealth Ct. 156, 455 A.2d 1287 (1983).
Weiss contends that the hearing examiner legally erred by not considering Section 504 of the Mental Health and Mental Retardation Act of 1966*fn1 as a basis for granting abatement or modification. She avers that Section 504 provides "that an abatement should be imposed if 'a substantial hardship upon the mentally disabled would result.'" This is incorrect. Section 504 provides, in part, as follows:
Powers of secretary to determine liability and establish criteria
(a) Whenever any person receives a service or benefit at any facility under this act wholly or in part at public expense, the secretary is hereby authorized and shall have the power, subject to the approval of the Attorney General, to determine the extent of liability imposed under sections 501 or 502, ...