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decided: October 3, 1983.


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.

Author: Crumlish

[ 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, and to abate, modify, compromise or discharge the liability so imposed provided:

(1) He is satisfied that the imposition of such liability would: . . . (ii) result in a substantial hardship upon the mentally disabled person. . . .

This language clearly only empowers, rather than requires, the secretary to grant relief from liability under the circumstances described therein. This fact is made even plainer by Section 504's subsection (d),

[ 77 Pa. Commw. Page 356]

    which provides that "[i]n exercising the powers herein conferred, the secretary by regulation, approved by the Governor, should establish criteria by which the extent of such liability shall be determined. . . .*fn2

Weiss also contends that the referee capriciously disregarded evidence of one of the standards for abatement or modification established by the Department under authority of Section 504(d) -- extraordinary circumstances meriting special consideration. 55 Pa. Code § 5405.31.*fn3 We must disagree. The primary hardship Weiss alleges the liability assessment will cause is that she will be unable to take her son on as many home visits and outings as she has in the past, thus impairing her ability to give her son some semblance of a normal family life. While we sympathize with and admire Weiss' efforts on her son's behalf, as did the hearing officer, we are unable to say that her difficulties are extraordinary.*fn4

Weiss further contends that her son's absence from the hospital for several days in certain months should lead to a proration of liability and, thus, modification of the assessment. The relevant departmental regulation provides:

If the client's . . . liability is less than the cost of providing services for that month, the billing

[ 77 Pa. Commw. Page 357]

    shall be for the amount of the maximum liability. Liability for residential service shall be prorated if the client is in residence for less than 15 days during the calendar month.

55 Pa. Code § 5402.2.*fn5 There is no indication in the hearing officer's decision, however, that he ever considered this issue and a remand is therefore required for the purpose of enabling him to do so.



The order of the Department of Public Welfare, Office of Hearings and Appeals, dated May 6, 1980, is hereby vacated and the matter is remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.


Order vacated. Case remanded.

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